Transcribed by Diane Bender, POB 178, Washington Grove, MD 20880, 301-948-0133, exeline@alumni.gwu.edu, July 9, 2004 http://www.genealogy.com/users/b/e/n/Diane-Bender/ Typed exactly as the originals, including their errors, but errors of my own might appear. Researchers should examine and compare originals and not rely on my transcription. Most page numbers, if any, either did not appear on the printed page or had been cropped from the scanned image. Scanned images of the indexed originals are at Ancestry.com by subscription and other sources. NOTE: I have transcribed only the pages that mention the name NORMENT, which is the family I am researching. There are undoubtedly other issues with articles relating to the trial. There appears to be coverage in the Baltimore Sun and certainly in the Westminster newspaper for the time. Summary: This trial for the murder of Abraham L. LYNN by Joseph DAVIS, aided by J. Hamilton SHUE, on April 5, 1872 in Carroll Co., MD, was conducted first in Westminster, Carroll county, MD, but resulted in a hung jury. The trial was then moved to Hagerstown, in Washington County, MD. Richard Baxter NORMENT was State's Attorney for Carroll County, MD. Herald And Torch Light (Hagerstown, MD) 17 Jul 1872 REMOVAL OF A MURDER TRIAL TO THIS COUNTY. - The case of Joseph Davis, tried at Westminster a few weeks ago for the murder of Abraham L. Lynn, in which the Jury failed to agree, has been removed to the Circuit Court of this County, the July Term of which commences on Monday next, the 22d of July. Herald And Torch Light (Hagerstown, MD) 25 Sep 1872 THE DAVIS-LYNN MURDER TRIAL The second trial of Joseph Davis for the murder of Abraham L. Lynn, removed from Carroll county, began in our Circuit Court, on Tuesday, the 17th inst., before Judges Alvey, Potter and Pearre. In the prosecution of the case Mr. Zeller, our State's Attorney, is assisted by Attorney General Syester, and John E. Smith, Esq., of Carroll County. Messrs. Maulsby and Bond of Carroll and Frederick Counties, and Messrs. Freaner and Neill, of this county appeared for the prisoner. The reporter for the Baltimore Sun gives the character or nature of the case, as follows: -- "Davis was indicted in Carroll county for the willful murder of his employer, A. L. Lynn, by striking him upon the head with an iron bar, on the 5th of April last. J. Hamilton Shue was also indicted jointly as an accessory. The trial of Davis occupied the court in Carroll county twelve days, when the jury, being unable to agree, were discharged and the case removed to this county. At the commencement of the present July term the case was called and postponed until today. Abraham L. Lynn carried on the business of a miller at "Englar's Mill," in Carroll county, the mill being rented by him. Joseph Davis, the prisoner, 22 years of age, was his principal assistant and general business man. On the 5th of April, 1872, Mr. Lynn was known to have about $900 in money upon his person.-- He was last seen by his wife with Davis at the mill in the afternoon. Mr. Lynn was missing at supper time, and the neighbors upon searching the mill found no person there, but at last discovered the dead body of Mr. Lynn in the grain bin, with the skull fractured and five or six other wounds upon the head made with an iron instrument; the $900 in money and the pocket-book containing it were not found. Davis soon after returned from a ride, alleging that Mr. Lynn sent him away on business. "The theory of the prosecution is that the murder was committed by Davis, assisted by J. Hamilton Shue, a shoemaker whose shop was near the mill, the motive of the murder being to obtain the money, which they knew Mr. Lynn had with him; that Lynn was killed while on his knees looking down the dark grain bin (with a lamp in his hand), to discover a leak in the bin, which was perhaps made to decoy him to the place; that while looking down he was struck upon the head with a crowbar or other iron instrument, and fell into the bin, where he died; that the barrels which blocked the approach to the bin were placed there after the murder by Davis, to prevent the immediate discovery of the crime. This theory they maintain is supported by the actions and general conduct of Davis, and by other facts. Also that no other persons could be reasonably supposed to have committed the murder except Davis and his accomplice." The following Jury was obtained, the first eight being of the regular panel: John Schiffler, Martin Funk, George Bergan, John J. Hershey, Ezra K. Leiter, George Harbaugh of J., Charles A. Gabe, John Kendall, Henry Dusang, Thomas H. Crampton, Zolomon Funk and John Kretzer. Thomas H. Crampton is the foreman. We give from the Sun the following sketch of the further progress of the trial: SECOND DAY. Attorney General Syester made the opening statement to the jury for the prosecution. He stated that it was a case of circumstantial evidence, but the chain of testimony would be so complete that no shadow of doubt would exist in their minds as to the guilt of the prisoner.-- He then recapitulated the facts which the State would prove, (as heretofore published,) and dwelt upon the enormity of the crime committed by the prisoner, and the duty of the jury to render uninfluenced by any false sympathy for the accused. He also quoted upon standard authorities upon the subject of circumstantial evidence. Ex-judge Maulsby made the opening statement for the defense, which occupied two hours. He criticised the opening statement of the prosecution, and quoted a number of authorities upon the law of the case. He detailed the facts of the case, and expressed his belief in the innocence of his client, and that such would be the verdict of the jury in the case.-- The court then took a recess of one hour. TESTIMONY FOR THE STATE. The following witnesses were examined on the part of the State: Adam Fuss testified that at Mrs. Lynn's request he examined the mill occupied by Mr. Lynn to find her husband, who she said was missing; it was on the 5th of April last about 7 P. M.; he and Thos. Shue found Mr. Lynn's dead body in the grain bin or sink; other persons came and they took the body out; witness described the premises and the condition of the body; Davis had just left when witness went to the mill; Davis returned about midnight. The other testimony of the witness was the same as given on the former trial. The witness was also cross-examined by Mr. Maulsby at great length, without eliciting any new testimony. THIRD DAY. The State called the following witnesses: Mordecai McKinstry testified that when he heard of the death of Mr. Lynn, about 7 P. M., he took two of his men and went to Lynn's mill; he found fifteen or twenty men there. Witness was then shown drawings of the interior of the mill, &c., which he explained to the jury; witness also described the condition of the body of Lynn, the position of the flour barrels about the opening of the bin, explained the leak in the bin and the working of the elevator. Witness then related Davis's testimony before the coroner's jury. He said that Davis testified that Mr. Lynn sent him on Friday with a letter to Alfred Warner; told him to ride fast, that he had bought property of Mr. Warner, had sold his wheat and had the money to pay him on Saturday; he delivered the letter and after his return, Mr. Lynn sent him with an order to Mr. Russell, at Union Bridge, on his return, about sundown, he stopped at the mill, fed the horse, &c., and then dressed himself, went to Union Bridge, took a young lady on a visit, and returned about one o'clock; when Mrs. Lookingbill asked for Mr. Lynn, told her that he had walked out; he and Shue were not together on Friday, on Saturday they were sitting together on the platform of the mill; a few days previous he saw Lynn count his money on a bench in the mill-room, which amounted to about $1,400; Lynn said he had paid some of it away, leaving $400 or $500; he knew there was $900 due Mr. Warner, and that $100 had been paid; that he told the negro boys, "Damn it, I killed Abe, don't you believe it?" as a joke. The witness (McKinstry) then described the wounds upon the body of Lynn, the blood spots on the walls of the mill, &c.; the foreman of the jury fitted a crowbar to one of the wounds and it appeared to fit. [Crowbar found in the mill exhibited.] Witness then showed the jury how the bar fitted the wound. [A cooper's adze, very rusty was here exhibited the first time in the history of the case.] The witness found the adze on the 20th of June (since the first trial) underneath the "penstock," inside the mill walls; Abraham Stoner, Mr. Six and himself were examining the mill at the request of the State's attorney; witness delivered it to Mr. Stoner to keep; on the edge of the blade of the adze he found a human hair from one and a half to two inches long; it was a dark brown color; he knew it was a human hair, because it was elastic; did not know what became of the hair; the adze was rusty on the poll and blade when found; Mr. Zenubrin took the adze out of the water; Mr. Lynn was a strong and active man, and sober; he weighed 165 or 170 pounds. The witness was cross-examined at great length upon minute points of testimony, and for the purpose of testing his recollection. He occupied the stand over 3-1/2 hours. Joseph McKeana testified that he and Joseph Davis were on the way to the funeral on the 7th of April, when he asked Davis what he was going to do.-- Davis said if Mrs. Lynn kept the mill he intended to run it as it had been; if not, he would try and rent it. He said they had treated him too d---d bad; he had to lay around over there in his good clothes, and he was not going to sleep in the mill again. Davis said he would be d---d if he wouldn't bet $50 Lynn was not killed with a crowbar, but he was killed with an adze, and if they would look in the race they would find it. Witness told it to Hamilton Cress about the time of the trial; told Mr. Winemiller about the adze and the crowbar. Cross examined-- Witness never told it to any others until he came to Hagerstown; Davis did not give any reason why he supposed Lynn was killed with the adze; Davis and he were talking, but upon other subjects; Davis got out at Middleburg, and witness went on to the funeral; Davis went with him from Middleburg to Mr. Lynn's and back again to Middleburg; it was then Davis ballhooed "Yip," to the horse; witness checked him and told him it was a funeral; Davis said, "D--n the difference." Witness was not in Westminster during the trial; he did not mention it, for one reason that he did not want to be taken away from his books; he did not want to go into court; and another reason was, he thought they had evidence enough without him to do what they wanted to do; he did not think his evidence was important; Cress told witness that he had informed Mr. A. Stoner on him before the last trial was taken up in Westminster; does not know the State's attorney at Westminster, never had any talk with the counsel; does not know who had him summoned; the attachment was served on him by Mr. Lewis Lynn the day after they swore the case out of court at Westminster. Abraham Stoner testified that he had a conversation with Mr. Cress on this subject-matter, and in consequence of that he proceeded to search for the adze and the pocket-book upon the order of the State's attorney; he, with Mr. McKinstry and others found the adze; (witness identifed the adze;) there was a hair on it, it dropped off at Union Bridge; the rust fell off and took the hair with it; he was raising the hair with a knife at the time it dropped off; had a conversation with Davis on Saturday after the death; told him that he was informed that he (witness) was the next man to be killed; asked Davis about it, and he admitted he said so, because witness carried a great deal of money with him; Davis said Lynn was killed and more than one had a hand in it. Wm. Rout testified that he assisted in taking Lynn's body out of the grain bin; [a model was here shown and described by witness;] never saw barrels around the bin before that night; witness described the blood spots within and around the bin, upon Lynn's clothing, &c.; examined all his pockets; saw his watch hanging out; saw no money; Dr. Manakee found a small pocket-book with $105 in it; that was all. Cross-examined.-- The body of Lynn was hanging by the arm on a pin; the lamp was found in the bin, buried in the wheat; Lynn's hat was burned in several places; it was supposed by the lamp; had to get on the barrels to look in the bin. Martin Wolf testified to the finding of the body of Linn in the bin; witness was alone in the mill when Mr. Fuss left the mill; saw no person there when he was absent. Mary Lewis, colored, testified that Mr. Davis told witness that Mr. Lynn was killed for his money, and if he had not the money with him, they would have robbed the house; witness told Davis that a detective was coming, and as soon as he saw the man who killed Mr. Lynn he would know him; Davis went immediately to the stable; she watched Davis because he acted so; she thought he was going to kill himself. George Winters testified that he had a conversation with Joseph Davis in his shop; witness had his pocket-book out, Davis came in and said witness must carry a great deal of money and did not like to show it; witness remarked that some people liked to show their money and among them his old boss, Mr. Lynn; Davis said: "Yes, how would you like to go for him," or, "Would you go for him;" witness replied, "My God, no;" Davis afterwards said he was in fun and went out. Cross-examined.-- Witness could not tell whether he meant it in fun or not; at that time he took it in fun. The Court adjourned until to-morrow at 9 A. M. FOURTH DAY. Lewis Beale, a new witness, testified that he had a conversation with Joseph Davis on Sunday, April 7th, on the saw mill; witness aid to Joe "it was a pretty bad affair;" "yes," he said, "Lynn was certainly murdered for his money, and if they look for his pocket-book in the race they will find it." Daniel E. Buckey testified that he is a miller, about two or three miles from Union Bridge; had a conversation with Davis in March; Davis said the only mill he cared about running was the mill Mr. Lynn had; he thought Mr. Lynn had had it long enough, and ought to give it up. Miss Dennie Fuss saw Shue and Davis between one and two o'clock at the mill on the day of the murder; saw Lynn going to the mill between twelve and one o'clock, and afterwards saw Davis go away about 3.30 go away on horseback; saw no one else about the mill at the time. Jonas Englar testified that he and his brother are the owners of the mill rented to Lynn; he passed the mill at 1.30 P. M., April 5th; saw Davis and Shue sitting on the forebay; told Davis on Saturday to stay there and attend to the premises; Davis said he was going away and would not be back until Tuesday; the mill is about one hundred yards from the Frederick county line. I never spoke to Davis about renting the mill to him; never spoke to Lynn about it; had no agreement with Lynn about renting the mill for a specified time; witness said he remarked to his wife, as he was passing the mill, that he had noticed that Shue and Davis were together a great deal for some time past, and that either Shue had but little work in his shop or there was something out; Shue's shoemaker's shop was near the mill. Robert Williams, colored, was at the mill about 5.30 P. M., but found nobody there and went to Shue's shop and waited twenty minutes, when Davis rode up; witness got some flour, and Davis said he was going to take his girl out in the buggy. Mrs. Lugenbeal testified that she was at Lynn's mill April 5th, at about 3 P. M.; saw no one about the mill except two children; Davis brought the flour out; Davis said Lynn was at his house with a boil on his neck; she left, and at Shue's shop called back that she wanted a receipt; Shue called to Davis that "this woman wants a bill," which was given her; saw a lady on a porch looking towards the mill; took her for Mrs. Lynn; Davis came out second-story of the mill, front door. Benjamin Harp, colored, testified that on Friday, April 5, about half an hour before sundown he took a wagon to the saw-mill; Davis went into the mill and got a crowbar to unload a log; crowbar was not dusty. Thomas W. Purnell testified that Davis was at his shop at Union Bridge about 5 o'clock on the 5th of April, and said Mr. Lynn had sent him to get the money for a barrel of flour; he presented his written order; witness wrote a note to Mr. Lynn that he would call and pay it, and gave it to Davis, who said "all right." Isreal Rinehart testified that he was at Shue's shop about 2 P. M. on April 5th; got his boot mended; Davis was then talking to Shue about coal oil; in a few minutes Davis came to the door in an excited manner; said he heard a jarring in the motion of the mill; Davis went up to the mill and came back in about five minutes; was on the jury of inquest; Davis said he told Mrs. Lugenbeal that Lynn had stepped out on the saw-mill; Davis testified before the coroner's jury that he and Shue had no conversation on Friday, except in the presence of others. Daniel Rinehart testified that he was at Lynn's mill on Saturday; was one of the jury of inquest; witness described the penstock of the mill, and said it would be easy to throw an object under it into the water. The court took a recess of one hour. Jasper C. Shriner testifed that he examined the mouth of the sink in Lynn's mill, and described the blood stains; identified the splinters broken from the mouth of the sink. [Splinters exhibited.] Theredore L. Fritchey testified that he was present at the jury of inquest; examined the sink and mill; went upstairs to the room in the mill occupied by Davis; one of the sleeves of the shirt found on Davis's bed had unquestionably been washed; it was damp and frozen stiff; one of the boots had been wet or washed, and appeared to be moulded; the coat had some kind of spots on it. [The shirt and mill coat of Davis were identified by witness and exhibited to the jury, and it was stated by counsel for the State that they were placed in Prof. Toury's hands for an analysis of certain spots found upon them, and that Prof. Toury testified in court, on the former trial, that the spots were so small that they could not be analyzed, whatever they might be.] Davis asked witness if Lynn could not have been killed with an adze. Dr. Hall testified that he resides in Baltimore; is a family connexion; on the 7th of April arrived at Lynn's mill and made an examination of the sink; Davis said: "Whenever you do find out about it you will find that more than one was concered in it;" Davis appeared perfectly unconcerned; witness thinks it utterly impossible that Lynn could have been killed by the fall into the sink; saw a coat and pants in Davis's room in the mill. Miss Maggie Musbaum testified that she knows Joseph Davis, had conversations with him; Davis visited her and told her something would happen within the next two months that would astonish everybody, and that the rights of it would never be found out; Davis said he had a bunch of keys that he could unlock any door and any store door in Union Bridge; told him she hoped he was not going to rob the stores; he said "Something worse than that;" he said "Don't tell any one what I have said, because you would be summoned and would make a good witness; this was told her between the 20th and 24th of last February, a little before sundown; witness was living with her sister at Union Bridge. Cross-examined.-- Davis used frequently to visit her; she lived at home, and has seen him since; saw him at the funeral; thinks the conversation was on the evening of the 24th; have had no quarrel with him. FIFTH DAY. In the Circuit Court for Washington county, before Judges Alvey, Motter and Pearre, the trial of Joseph Davis for the murder of Abraham L. Lynn, in Carroll county, on the 5th day of April last, was resumed. The cross-examination is conducted on the part of the prosecution by State's Attorney Norment, of Carroll county, who has taken part in the trial since Wednesday. On the part of the defense, the cross-examination is conducted by ex-Judge Maulsby. The court-room was crowded in every part at an early hour, showing an increased interest in the trial. Wm. Brightwell testified that he was at Lynn's mill on Saturday. Davis helped witness and his brother to drive some shoats; witness said, "This is a bad go;" Davis said, "Yes;" witness said, "The thing would stop running for some time;" Davis replied, "Oh, G-d d--n it, I killed Abe--don't you believe it?" witness made no answer; took him to be in jest; Davis said there was no good in the mill -- he wouldn't sleep there. John Feiser testified that, returning from Lynn's mill, through Union Bridge, he saw Lynn's horse and buggy at Anderson's; called at the door and asked Davis he had hed heard that Abe was dead; Davis said "No, how did it happen?" witness told him; Davis asked if he had a doctor; told him "Yes;" Davis then shut the door and went in; he took it very coolly -- appeared unconcerned. Isaac Shrines testified that he told Davis, on April 6th, the suspicions on him abut his absence; Davis said he had promised to take some ladies somewhere; said the reason the barrels were about the mouth of the bin was because there was no room elsewhere; that they were put there Wednesday morning; that the crowbar was in there because they were using it in raising burrs; said he would show me where lay the print on the floor, which was dirty, but when he went to show it said he couldn't do it on account of the walking around there; witness never saw barrels about the bin before; there was plenty of room back of the water-house. Mr. McKinstry testified that the burrs of the mill were generally raised with a screw; never knew a crowbar used for that purpose. Jesse Ambers gave the same testimony as above. Lewis Lynn, brother of the deceased, heard of his brother's death Friday night; saw Davis at Union Bridge with his brother's horse and rode to the mill with him; Davis asked witness if Mrs. Lynn would continue to run the mill; witness told him he didn't know; Davis said the horse he had was as good a little horse as any man ever had; reckoned he would be sold, and if he had the money he would buy him; witness took charge of the clothes of his brother after he was taken out of the sink; Mr. Englar held the bag and witness put the clothes in it. [Here the bloody clothes of the murdered man were exhibited to the jury, and presented a sickening sight. There was some hair on the pants, as if it had been cut off of something and pressed on; some of it had been lost; when they reached the mill Davis did not look at the corpse while witness was there; witness saw it; Davis was very nervous on his ride from Union Bridge; his voice jerked as if cold; the weather was not cold; Davis uttered no expressions of regret at all. Samuel Shunk testified that he discovered spots on the sleeve of Davis's coat in Davis's room, which he supposed to be blood; the right sleeve of the shirt lying on the bed was smeared with mud, and been wet; Davis's right boot had been wet; made the examination on Monday, April 8th. Dr. E. O. Manaker testified that he examined the body of Lynn at the mill at 10 P. M. on Friday; Lynn had been dead, he thought, about six hours; saw the body taken out of the sink; witness described the position of the body; witness took a pocket-book from the body containing $105; also took his watch; told those present that he was not satisfied that the killing was by accident, and that a coroner's jury should be held; the jury of inquest was held next day, (Saturday;) he examined the wounds upon the head; there were six of them; five were flesh wounds, which witness described; the sixth wound was about one and a half inches long, on the back part of the head; upon dissecting wound No. 6 a fracture of both tables of the skull was discovered, corresponding with the outer wound; the fracture extended upwards and outwards about two inches from the left and upper angle; the wound could not have been given if the person was standing; the person must have been in a stooping position; wounds could not have been produced by an accidental falling into the sink; Lynn might have lived about fifteen or twenty minutes; did not make a post mortem; the sixth wound was a mortal wound and the cause of death. The other testimony was the same as given on the former trial as an expert. Witness is of the opinion that a blow either with the crowbar or the adze would have produced the fracture of the skull which caused death. Mr. Maulsby stated to the court that he had previously suggested to the State's attorney to produce the skull of the deceased in court as the best evidence to show the character of the fractures; and said that its non-production was a fact to go to the jury, from which they might infer why it was not produced. The court (Judge Alvey) said the skull could not be obtained against the wishes of the friends of the deceased without an order of the court; that there was no precedent for such a step; that it was revolting to the human feelings, and he instructed the jury that the non-production of the skull was not to be taken into consideration by them, nor were any deductions or inferences to be drawn from it. The witness was subjected to a minute cross-examination, lasting about 4 hours, principally with reference to his testimony given on the former trial, &c. The witness illustrated his testimony by exhibising a skull from his own anatomical collection. [The above report brings the case to Saturday evening last. The testimony of this week, with the probable result of the issue, will be given in our next.] Herald And Torch Light (Hagerstown, MD) 2 Oct 1872 [From the Baltimore Sun.] THE DAVIS-LYNN MURDER TRIAL. SIXTH DAY. In the Circuit Court for Washington county, before Judges Alvey, Motter and Pearre, the trial of Joseph Davis for the murder of Abraham L. Lynn, in Carroll county, on the 5th day of April last, was resumed. State's Attorney Zeller, of Washington county, State's Attorney Norment, of Carroll county, Attorney General Syester, and ex-Judge Smith for the prosecution; ex-Judge Maulsey and J. A. C. Bond, of Carroll, and George Franer and Alex. Neill, Esqrs., of Washington county, for the defense. The court-room and gallery were again crowded with spectators. Mrs. Lynn is not in court this morning, she having, it was stated, an infant six weeks old requiring her care. The court was called at 9 o'clock, and the examination of witnesses for the State was resumed. Dr. J. W. Herring was called as an expert, and asked the following question: "Whether from the nature of the wound and fracture, as described by Dr. Manakee, as fatal, such wound and fracture could have been inflicted by the accidental falling of the deceased into the bin or sink, in the condition in which that bin or sink has been described by the witness?" The court, after argument, decided that the question was admissible, and the witness answered in the negative. cross-examined-- Witness could not say that it was not possible that three of the other wounds upon the head could have been received by falling into the bin, but does not think it probable; it is possible that wounds might have been received from nails in the bin; it would have increased the probability if he had found the nails covered with hair. The cross-examination occupied two hours and a half. By State-- The examination made by Dr. Manakee was sufficient to ascertain the cause of death. Dr. James L. Billingslea testified that he had been a practicing physician between thirty and forty years; from the nature of the wound and fracture of the head of the deceased, (Lynn,) as described by Dr. Manakee and the testimony relative to the sink, he does not think it possible that said wound could have been inflicted by accidentally falling into the sink. Dr. Wm. N. Martin testified was a well-developed, active, muscular, strong man, nearly six feet high; saw Davis on the 5th of April, about 6 P. M., coming toward the mill; witness was struck with his looks, he was remarkably pale; bought ten pounds of flour of him; started to go into the mill, but Davis came out before he got within it; heard Davis running up the steps and running down; examined the gable-end wall of the mill on Sunday; there were spots there which he considered blood; they looked as if they had been spattered upon it; on Monday went to Davis's room in the mill; saw a coat, shirt, vest and boots, which Davis said were his clothes; witness described their appearance; looked as if they had been wet; witness is of opinion that it is impossible for the wounds on the head of the deceased to have been produced by accidentally falling into the sink. Cross-examined: There was an extreme absence of color in Davis's face for a short time after witness met him; the blood and hair on the nails may have been put there by the floundering of the person in the bin after being wounded; as the elevators were running, the wheat may have been above the nail in the sink when Lynn was thrown in; does not believe the nails and pin would produce any of the wounds on the head. Many hypothetical questions were put to witness to elicit different theories of the case to account for the death of the deceased, but nothing of sufficient interest for publication was developed. A large part of the day was occupied by counsel in contesting the admissibility of testimony, in arguments upon the law of evidence, reserving exceptions to the rulings of the court, &c., and but little progress was made in the case. The court adjourned until to-morrow at 9 A. M. SEVENTH DAY. Mrs. Mary Lynn, widow of Abraham L. Lynn, testified that she had lived at the mill six years; has known Davis five years; witness did not see Davis leave for Linwood; heard him say he knew the contents of the letter he took there on Friday; Davis returned about 12 M., Davis said he did not want any dinner; was not well; ate very little; Mr. Lynn had a boil on his neck and went upstairs the windows faced the mill; saw Davis and Shue sitting on the forebay; Mr. Lynn changed his mill clothes for better ones; he took out his pocket-book and counted out $900, and put it back in his pocket; he then left for the mill at 2 o'clock; on his way he spoke to Davis; witness then went into the house and came out again at 2-1/2; saw the front mill doors closed; came out again at 3 P. M.; saw a wagon at the mill, and a lady get out; saw Davis put flour in it; never saw her husband again alive; next saw Davis when he returned from Union Bridge, about 6 P. M.; he was putting the horse in the stable; told him to come to supper and to call Mr. Lynn; Davis asked if Mr. Lynn was not at the house; said he wanted no supper himself; a man with a log asked for the crowbar; Davis went into the mill and got it for him; Witness said "Joe, I am uneasy about Mr. Lynn, am afraid something has happened to him;" Davis replied, "Happened, the dickens! he has gone to the store;" witness sent her little boy to the mill, and he said he could not find his father; she then went to Shue's shop; Shue said he didn't know where he was; noticed that Shue looked down when he spoke to her; she then went to Mr. Adam Fuss's house and asked him to look for her husband; Mr. Fuss and Shue went to the mill; knew nothing more until she was told that her husband was found dead in the mill; Davis told her he saw her husband count his money on Thursday; that it was hard to tell who did it, and when it was found out more than one had a hand in it; Davis slept at the mill; kept his clothes at the mill room; witness had never seen her husband's money or pocket-book since; Davis learned her trade with her husband; stayed with them three years and three months; he then went to Hultz's, and stayed there a year; then came back to her husband's house twenty-four days before his death. Cross-examined.-- The defense proposed to ask witness if she visited Davis after he was arrested and in jail and shook hands with him; and it on leaving the jail she said Davis was no more guilty than a gate, (pointing to one.) The State objected and the court ruled it inadmissible. The witness, however, replied that she did not go to the jail (with her brother) for the purpose of showing Davis any particular kindness, or for the purpose of shaking hands with him; and that she had never expressed her belief in the innocence of either of them. David Greenwood testified that he was at the funeral; heard Davis say that he saw Lynn count his money, and there was between $1,500 and $1,600 in notes of hand and money. Dr. Samuel F. Moore testified that he is a graduate of the University of Maryland; that he assisted in exhuming the body on Friday last; it was done at the request of the counsel for the State, and with the consent of the family; he was assisted by Drs. J. W. J. Engler and Milton Lauver. [The witness then exhibited the skull of the murdered man, which occasioned a sensation in court.]-- The skull showed two fractures, one at the back of the head, near the base, extending through the right ear, the other fracture was upon the right temple, involving the whole of the temporal bone, and connecting with the other fracture; witness said either of the fractures would cause death; witness is a connection of the Lynn family. Cross-examined.-- No person on the part of the defense was present, or requested the exhumation; the last fracture was not discovered on the first examination. [Mrs. Lynn was not in court after this witness was called.] Israel Norris testified that he was foreman of the coroner's jury; assisted Dr. Manakee in the examination of the wounds; witness fitted the crowbar to the fracture in the skull before the jury in court; witness examined the sink or bin, and described it and its condition after the murder. Cross-examined.-- Witness found blood and hair on one of the nails; saw two nail heads projecting about 3-16ths of an inch inside of the bin. Joseph Engle testified that Mrs. Lynn made him a present of the hat found in the bin; witness asked her for it, and she gave it to him. [Hat exhibited in court.] Reuben Staylor testified that he was one of the jury of inquest; identifies the hat of the bloody clothes of Mr. Lynn; knows it by the burnt rim. [The hat was bloody and covered with mill-dust.] Dr. James B. McKee, of Hagerstown, testified that he had been in practice thirty-eight or thirty-nine years; witness examined the skull and described the wounds, and testified that the wounds were necessarily fatal, and could not have been produced by falling into the bin; the deceased might have lived a few hours; from the evidence of witness the blood spurted against the sides of the bin, within four inches of the top, which could not have been the case if he had fallen to the bottom of the bin. Cross-examined.-- Never saw a combination fracture like the present; cannot say how long the person might live -- perhaps half an hour if reaction occurred. By State -- Witness could not have discovered by a post-mortem examination on Friday whether Lynn died instantly or not. Dr. Frederick Dorsey testified that the fractures of the skull in this case could not have been made by falling into the bin; when a physician has made an examination of a body sufficient to satisfy his own mind of the cause of death he does not extend the examination; the fractures on the skull in this case would produce death; thinks the fracture could have been produced with this crowbar. Cross-examined.-- Witness, with Drs. Martin, McGee, Manatee and More, have been twice in conference with the counsel for State on the subject of their testimony; their views were in harmony except on the subject of the instrument used; witness has had conversations with some of them on meeting them and riding together. [Witness applied the bar to the skull to show how the wounds were made.] By the State.-- The witness's description of the wounds, given him previous to this trial, is the same as the description read by Dr. Manakee on the witness stand, upon which he formed his opinion. [The defense objected to the witness's testimony, on the ground that his opinion had been previously formed. The court overruled the objection. The defense reserved an objection to the court's ruling, and asked the court to reduce its remarks to writing.] Witness continued.-- The opinions he has expressed here were his own independent opinions. Alfred Warner testified that Mr. Lynn wrote to him a letter to call and get the money due witness on Saturday, April 5th; [letter produced;] the amount due witness was $900. Dr. N. B. Scott, of Hagerstown, testified that he had heard a description of the bin; from the nature of the fractures upon the skull before him he does not see that it is possible for them to have been produced by falling into the bin. Cross-examined.-- The wounds would produce death in a very short time. John E. Senser testified that he was at the mill on Thursday evening, April 4th; there were several barrels near the mouth of the sink, within eight feet of the sink. Charles V. Wantz testified that he was in Davis's sleeping room in the mill. George M. Fringer, sheriff of Carroll county, testified that he got $60 from Joseph Davis; locked it up and kept it for him; witness selected a five-dollar note; [which was exhibited to the jury with a small spot on it supposed to be blood;] the clothes of the prisoner were placed in his hands for safe keeping. The court adjourned until to-morrow at 9 o'clock A. M. Herald And Torch Light (Hagerstown, MD) 9 Oct 1872 CLOSING PROCEEDINGS IN THE DAVIS-LYNN MURDER TRIAL.-- The Correspondent of the Baltimore Sun gives the closing proceedings of our Circuit Court in the Davis-Lynn Murder Trial, as follows:-- In the Circuit Court for Washington County, before all the judges, and the counsel engaged in the trial of Joseph Davis for the murder of A. L. Lynn, the consideration to the bill of exceptions to the rulings of the Court, offered by the prisoner's counsel in said trial was continued from yesterday. The bills of exception first presented to the court by Mr. Maulsby contained 130 folio pages, and included all the evidence taken in the case. The court declined to sign the bills in this form, and directed the counsel for the prisoner to put in only such evidence as was necessary to explain the point as excepted to, as prescribed by the fifth rule of the Court of Appeals. They were then reduced to thirty pages, numbering sixteen bills, after which they were read, discussed and amended so as to meet the concurrence of court and counsel on both sides. They were then signed by the court and filed by the clerk, and the usual affidavit made by counsel for the prisoner that the appeal was not taken for the purpose of delay. The court then stated that the sentence of Joseph Davis was suspended until the action of the Court of Appeals was had in the case. Mr. Maulsby then offered an additional paper or bill to the ruling of the court in excluding the evidence in the bills of exception as first presented by him in his bills of exception. The court declined to sign the paper but stated they would give him a certificate of the fact that he desired to include certain additional evidence in the bills of exception. Mr. Maulsby then filed a motion for a new trial in the case of Joseph Davis, on the ground of his conviction upon insufficient evidence, &c., which the court overruled. Mr. Maulsby then moved that J. Hamilton Shue, indicted as an accomplice of Davis, &c., be now put upon his trial. The prisoner was ready for trial, and elected to be tried before the court, without a jury. His counsel would call no witnesses, but would submit the case to their honors upon the evidence already before them in the case of Davis. His client was entitled to a speedy trial, and both cases had been assigned for trial at one time. The counsel for the State, Messrs. Norment, Zeller, State's Attorney, and the Attorney General, objected to the trial of Shue at this time upon the ground that the witnesses had all been discharged, without objection or notice to them by prisoner's counsel of the desire or intention to put Shue upon his trial; also that the prisoner could not demand a trial according to the record of this court, inasmuch as the record in Shue's case had not been sent up until four days after the last sitting of the court, and not as the same term as the record in Davis's case; also that the State had additional evidence to offer in Shue's case to that presented on the trial of Davis. The court decided that as the record in Shue's case was not before them when the Davis's case was assigned for trial, the court could not have acted in his case, or assigned it for trial at the same time as Davis's case. Besides, he was not entitled to be tried at this term. The judges of this circuit were obliged to hold a court in Allegheny county on Monday next, &c. The court overruled the motion, and postponed Shue's case to November term. Mr. Maulsby then moved the court to admit Shue to bail and to fix the amount. The court, after consideration, fixed the amount of Shue's bail at $5,000. Mr. Maulsby then offered himself as security on Shue's bond for $5,000, which the court declined to accept on the ground that the attorneys of the court were officers of the court, and that the rule of court prescribed that no officer of the court could become a party to a bail bond in said court. The court said the clerk could accept any responsible parties as bail for Shue. The court then adjourned to the second Monday in November. Herald And Torch Light (Hagerstown, MD) 10 Sep 1873 THE LYNN MURDER - A STRANGE LETTER. - We have been shown by R. B. Norment, Esq., a letter, dated at New York and directed to Gov. Whyte, purporting to have been written by a man named L. Nelsudy, a manufacturer of counterfeit money, who asserts that Abraham L. Lynn was not murdered by Jos. W. Davis, but by a man who was associated with him - Nelsudy - in the counterfeiting business. Governor Whyte transmitted the letter to Attorney General Syester, with instructions to have the matter investigated by the State's Attorney of Carroll county under his - Mr. Syester's - direction. It was therefore sent to Mr. Norment, who kindly permitted us to read it, and we will, if the Attorney General consents, publish it in full. - Mr. Norment assures us that it has in no way shaken his confidence in the justice of the verdict "murder in the first degree, rendered against Davis at Hagerstown. - Westminster Sentinel. Herald And Torch Light (Hagerstown, MD) 17 Sep 1873 The Davis' Case. On Thursday last, Gov. Whyte gave the Counsel of Joseph Davis a hearing at his office in Baltimore, upon their application to him for a pardon or commutation of Davis' sentence. They base their application upon Shue's testimony, which was excluded on the trial, and were replied to by Attorney General Syester, of this county, and Mr. Norment, of Carroll. The examination last two days, but Shue not being present and the Governor being anxious to examine him privately, without counsel or others being present, except the reporters, he appointed next Monday as the day when he would make that examination. Some surprising statements were made by two of the council on opposite sides, as appears from the following report in the Balt. American: Mr. Norment then said that it was a notorious fact that Davis had been engaged in the circulation of counterfeit money. Mr. Bond.-- We cannot deny that he was acting as the agent of Abraham Lynn. Whatever wrong he did in this way was at the instance of Lynn, and for his benefit. Mr. Norment.-- I know that Mr. Lynn was also accused of circulating counterfeit money. Governor Whyte.-- We cannot institute an inquiry now as to what Mr. Lynn was or what he did. We have nothing to do with that. I am asked to interpose between Joseph Davis and the sentence of the law. I had been led to believe that he was a young man of good character, and this appeal for clemency rested partly on that fact. I now find that he a young man of bad character, and that it is a matter of common notoriety that he was engaged in passing counterfeit money. Gentlemen, this case rests upon very different grounds now; before this investigation begun Davis had the benefit of whatever presumptions attach to a character previously good. These are gone; I cannot regard a man who deals in counterfeit money as a man of good character. The only question with me now is this: is there any reasonable probability that Shue's testimony is true? Is there anything in his statement that might have led a jury to come to a different conclusion? I want to examine him privately, no counsel for either side being present. Judge Maulsby promised that Shue would be forth coming on next Monday week, or at least that he would make every effort to get him to come. Judge Maulsby then went into a long personal explanation, the purport of which was that he himself firmly believed Davis innocent. The Governor intimated that he desired no more argument, and that his decision would be made as soon as he had examined Shue. Herald And Torch Light (Hagerstown, MD) 19 Nov 1873 THE DAVIS-LYNN MURDER -- Pardon of Davis Refused -- The Execution, &c. -- Having given to the counsel of Joseph Davis, convicted of the murder of Abraham Lynn, in Carroll county, ample opportunity to produce the witness J. Hamilton Shue, that he might be cross-examined touching his knowledge of the case, and that witness having left the State, Gov. Whyte has refused the application for pardon or commutation of the death sentence, and has directed that the execution take place early in January. The Governor, it was learned, did not consider there was sufficient in the record of evidence laid before him to justify his interference in the matter, so after a long delay, and almost interminable legal obstacles, Davis will be hanged early in the first month of the new year. Lynn, it will be remembered, was most atrociously murdered and thrown down a grain bin in his own mill. -- Balt. Sun Herald And Torch Light (Hagerstown, MD) 11 Dec 1872 THE SHUE CASE - The Circuit Court for the County has fixed upon the 17th of this month, as the day for the commencement of the trial of J. Hamilton Shue, indicated as an accessory to the murder of Abraham L. Lynn. Herald And Torch Light (Hagerstown, MD) 23 Jan 1874 Legislative Proceedings. In the Senate the President laid before the body a communication from the Executive, transmitting the papers and documents relative to the case of Joseph Davis, under sentence of death in Carroll county ... Mr. Longwell introduced joint resolutions requesting the Governor to respite Joseph W. Davis, which were referred to the Committee on the Judiciary. Herald And Torch Light (Hagerstown, MD) 11 Feb 1874 The Legislature of Maryland did a wise thing in refusing to take action upon the memorial of Joseph W. Davis, and a still wiser one in declaring that it had no power to suspend the law in his case. When the question was first presented to the Legislature, and there seemed to be a probability that that body would take hold of it, and thus undertake to sit in judgment upon the trials and decisions of the Courts, every reflecting man saw and felt that such a precedent would be full of dangerous consequences in the future. Herald And Torch Light (Hagerstown, MD) 9 Dec 1886 LOCAL AFFAIRS. THE OLD METHODIST CHURCH. The old church building was used for the sessions of the circuit court for Washington county during the years 1872, 1873 and up to the March term of 1874, when the new court house was first occupied. One interesting but melancholy reminiscence of the court sessions in this church was the passing of sentence of death upon Joseph Davis for the murder of Abraham Lynn, in a removed Carroll county case, which is still fresh in the memory of many readers of the HERALD. This occurred on July 30th, 1873. The court record in No. 10, July term, 1873, Criminal Trials, shows that "the sentence of the court upon the verdict is that you, Joseph Davis, now at the bar of this court, be taken from this place back to the jail from whence you came, there to e detained in close custody, until you can and shall be removed to Carroll county, in this state, to which county you are hereby remanded, to be there detained in close custody in the jail of said county, and thence taken, at such time as may be duly appointed, to the place of execution, and there be hanged by the neck until you are dead. And may God have mercy on your soul." Judge Alvey delivered the sentence. http://books.google.com/books?id=yrkaAAAAYAAJ&dq=%22abraham+l+lynn%22&output=text&source=gbs_navlinks_s Reports of cases argued and determined in the Court of Appeals of ..., Volume 32 By Maryland. Court of Appeals Davis vs. State. use the testimony of Welsh for that purpose, notwithstanding it was taken under a commission at the execution of which the witness sought to be impeached, was not examined. Judgment reversed, and new tried awarded. (Decided 29th January, 1874.) STEWART, J., dissented. JOSEPH DAVIS VS. THE STATE OF MARYLAND. Sufficiency of the averments in an Indictment for Murder-Act of 1809, ch. 138; Art. 30 of the Code-Criminal Pleading Clerical Misprision-Second arraignment unnecessary-Docket entries-When a Writ of Error will not lie-Practice in the Court of Appeals. In an indictment for murder, it is not necessary to aver the circumstances which determine the degree, as defined by the Act of 1809, ch. 138, codified in Article 30 of the Code of Public General Laws. The express object of the Act of 1809, ch. 138, codified in Article 30 of the Code of Public General Laws, in dividing the crime of murder into degrees, was the mitigation of the punishment in cases of the second degree; there was no design on the part of its framers to change the form of pleading. When 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 vena. When a statute creates an offence, or increases the punishment of an offence, an indictment founded upon such offence, must aver the circumstances which constitute the offence or increase the punishment. Davis vs. State. A party was indicted for murder in the Circuit Court for Carroll County, was arraigned, pleaded not guilty, and was put upon his trial; the jury failing to agree were discharged, and at the suggestion of the prisoner, the record of proceedings was transmitted to the Circuit Court for Washington County. The transcript of the record so transmitted stated that the grand jurors who found the presentment, were "good and lawful men of Baltimore County." AH the proceedings prior and subsequent to this statement, were properly recorded as of Carroll County. HELD : That 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. A party indicted for murder in the Circuit Court for Carroll County, was arraigned, pleaded not guilty and put himself on his country ; a jury was impannelled and charged, and having failed to agree were discharged by the Court. On motion and affidavit of the prisoner, the cause was removed to Washington County for trial. HELD : That as the prisoner had been arraigned and had pleaded in the Circuit Court for Carroll County, it was unnecessary to repeat the form in the Court to which he was removed. The failure not to show by the docket entries all the facts which are extended at large on the record transmitted to the Court of Appeals, does not impair the validity of the record. After a party indicted for murder has been tried, convicted and sentenced to be hung, his counsel by petition prayed that the record of the case might be removed as upon writ of error to the Court of Appeals, and designated the following, substantially, as points or questions of law, by the decision of which the prisoner felt himself aggrieved: First, that the indictment did not, with legal sufficiency, allege that the crime with which he was charged, was murder in the first degree under the Code of Public General Laws. Secondly, that the averments in the record showed that the Circuit Court had no jurisdiction. Thirdly, assuming that the indictment, verdict and judgment were good under Article 30, sees. 137 to 145 of the Code, then that such sections were unconstitutional and void. HELD : 1st. That a writ of error did not properly lie; the errors assigned were subjects of demurrer, or in arrest of judgment. 2nd. That it not appearing by the record that the points or questions so designated had been tried and decided by the Circuit Court, they could not be decided by the Court of Appeals. WRIT OF ERROR from the Circuit Court for Washington County. The plaintiff in error was indicted in the Circuit Court for Carroll County in manner and form as follows: THE STATE OF MARYLAND Carroll County, to wit : The grand jurors of the State of Maryland, for the body of Carroll County, do on their oaths present, that Joseph Davis, late of Carroll County aforesaid, yeoman, on' the fifth day of April, in the year of our Lord one thousand eight hundred and seventy two, with force and arms, at the County aforesaid, in and upon one Abraham L. Lynn, in the peace of God, and of the said State, then and there being, feloniously, wilfully, and of his malice aforethought, did make an assault, and that the said Joseph Davis, with a certain iron crowbar, in and about three feet in length and one inch in diameter, which he, the said Joseph Davis, then and there had and held in both of his hands, the said Abraham L. Lynn, in and upon the back part of the head of him, the said Abraham L. Lynn, then and there feloniously, wilfully, and of his malice aforethought, did strike, giving unto him, the said Abraham L. Lynn, then and there, with the said iron crowbar, by the stroke aforesaid, in manner aforesaid, in and upon the back part of the head of him, the said Abraham L. Lynn, one mortal wound, of the length of one-and-a-half inches, and of the width of one-and-a-quarter inches, and of the depth of one-eighth of an inch, of which said mortal wound, he, the said Abraham L. Lynn, on the said fifth day of April, in the year of our Lord, one thousand eight hundred and seventy-two, at the county aforesaid, did languish, and languishing, did live. On which same fifth day of April, in the year of our Lord one thousand eight hundred and seventy-two aforesaid, at the county aforesaid, he, the said Abraham L. Lynn, of the said mortal wound died. And so the jurors aforesaid, upon their oaths aforesaid, do say that the said Joseph Davis, him, the said Abraham L. Lynn, in manner and form aforesaid, and by the means aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder, contrary to the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State." The plaintiff in error so indicted, was arraigned, pleaded "not guilty," and put himself on his country; a jury was impannelled and charged, and having failed to agree were discharged by the Court. On the 8th of July, 1872, on the suggestion and affidavit of the plaintiff in error, the record of proceedings in the case was transmitted to the Circuit Court for Washington County, for trial. A trial was accordingly had and the jury rendered a verdict of guilty of murder in the first degree. Exceptions were taken to the rulings of the Court during the trial, and the plaintiff in error appealed to the Court of Appeals, who affirmed the rulings of the Circuit Court and remanded the cause. (Vide 38 Md., 52.) The Circuit Court thereupon on the 30th of July, 1873, passed sentence of death upon the prisoner. On the 5th of January, 1874, the prisoner by petition, prayed that the record of the case might be removed as upon writ of error to the Court of Appeals, and designated various points or questions of law, by the decision of which he deemed himself aggrieved. These points are sufficiently presented in the opinion of the Court. The application to remove the record, as upon writ of error, was allowed. Subsequently, on the same day, the prisoner suggested as supplementary to his petition for the removal of the record, that the record of his trial in the Circuit Court for Washington County, as contained in the docket entries, minutes, records, &c., of said Court, was insufficient in law, as it did not show that at said trial he was arraigned or that he pleaded, or that a jury was sworn, or that at the time of passing sentence, he was asked why sentence should not be passed upon him; upon these points he desired to obtain the decision of the Court of Appeals. The cause was argued before BARTOL, C. J., BOWIE, GRASON and ROEINSON, J. Tryon Hughes Edwards and William P. Maulsby, for the plaintiff in error. Under the provisions of Article 30 of the Code of Public General Laws, no person can be guilty of murder in the first degree, and adjudged to death, unless the murder be perpetrated in some one or other of the ways mentioned. In this case the traverser is not charged by the indictment with murder by means of poison, or lying in wait, or in the perpetration of, or attempt to perpetrate arson, or in the burning, or attempt to burn a barn, tobacco-house, &c., &c., or in the perpetration of, or attempt to perpetrate rape, sodomy, mayhem, robbery, or burglary, or in arresting and imprisoning, or attempting to arrest and imprison any free person, &c., &c. Is he charged by the indictment with a wilful, deliberate and premeditated killing ? 2 Bishop on Criminal Procedure, sees. 567, 568, 584 ; Archbold's Gr. PI., (\1th Lond. Ed.,) 51, 52, 53, 60; 2 Hale's Pleas of the Crown, 110. Where a statute divides a Common Law felony into grades or degrees, and affixes to each grade, or to the particular circumstances under which the offence may be committed, a higher and lower degree of punishment, the indictment must expressly charge the circumstances under which it alleges the crime to have been committed, and must state those circumstances with certainty and precision. Davis v. State. The greater or higher may include the lesser or lower. But not e converso. The lower grade cannot include the higher. Under an indictment charging the higher grade of the crime, a traverser may be convicted of a lower grade. But under an indictment charging the lower, he cannot be convicted of the higher grade. Vide 1 Chitty's Gr. Law, 227, 229; State vs. Buchanan, 5 H. & J., 341; State vs. Nutwell, 1 Gill, 56; Capritz vs. State, 1 Md., 569; Weighorst vs. The State, 7 Md., 451 ; Franldin vs. State, 12 Md., 236, 249. The ingredient of murder in the first degree is that it shall be by some "kind of wilful, deliberate and premeditated killing." Such are the words of the statute. Code, Art. 30, sec. 137. In the indictment in this case, the words are that the traverser in and upon, &c., feloniously, wilfully and of his malice aforethought, &c. The indictment does not aver a deliberate and premeditated killing. "The words ' malice aforethought,' used to designate the intent by which the killing becomes murder, have, as the reader knows, a technical meaning, and they do not signify that the person killing meant to kill. On the other hand, the words 'deliberately, premeditated malice aforethought,' do include in their meaning, as the Courts all construe them, the intent to take life." Bishop Or. Pro., sec. 592. This indictment, is in Common Law form, in the respect being considered. Our statute requires, in addition to malice prepense, express or implied, deliberation and premeditation in the killing. The words of the Ohio statute are *' that if any person shall purposely, and of deliberate and premeditated malice, * * * kill another, every such person shall be deemed guilty of murder in the first degree, and upon conviction thereof, shall suffer death." It is held by the Supreme Court of Ohio that an indictment charging a killing, of deliberate and premeditated Davis w. State. malice, is insufficient, but that in addition it must aver that the killing was ''purposely" to be sufficient. Fonts vs. State, 8 Ohio St. Rep., 98 : Bobbins vs. State, 8 Ohio St. Rep., 131 ; Eagan vs. State, 10 Ohio St. B., 459; Loeffner vs. State, 10 Ohio St. Bep., 598. There is no substantial difference between the Ohio statute and the Maryland statute, in the respect in question. Each adds to the Common Law ingredients of murder punishable with death. The one, purpose and deliberation and premeditation. The other, deliberation and premeditation. Whether, according to the words used by the Courts of one State to express the idea, the statute created the crime, or according to the words used by the Courts of the other for the same purpose, "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 result is the same. The idea is identical. In both forms of words is involved the legal ingredient in the act which is essential to authorize the punishment. That ingredient is prescribed by the statute affixing the punishment to the offence in which the ingredient is found. The Ohio Court says that unless that ingredient, as prescribed by the statute, be averred on the face of the indictment, the punishment affixed by the statute cannot be applied ; that the record is deficient in not showing a case, compounded according to legal requirements, in which the sentence, as for the highest grade of punishment, can be adjudged. The record will be inharmonious. The indictment does not appenr to justify and support the judgment. Vide Fonts vs. The State, 8 Ohio St. Bep., 114. At Common Law a killing, felonious, wilful, and of malice aforethought was murder, and punishable with death. By the law of Maryland, a killing felonious, wilful and of malice aforethought, is murder also, but not punishable with death. At Common Law there was no such crime, or grade of crime, (the idea is the same, whatever words are used to express it) as murder in the first degree, and none such as murder in the second degree. In Maryland there is. The crime, or the grade of crime, was created by statute. It is not the same crime, or grade of crime, which was Common Law murder. The statute declares that no killing shall be murder in the first degree in this State, and punishable with death, as all murder was at the Common Law, unless it be wilful, deliberate and premeditated, or be of some one of the other enumerated classes. All other kinds of murder shall be murder in the second degree, and punishable by imprisonment; under this head is embraced Common Law murder, or killing wilfully, feloniously and of malice aforethought. All such is punishable by imprisonment, and may not be punished with death. An indictment, in Common Law form, and embracing the allegations of facts required by the Common Law, is a good indictment for murder in the second degree in Maryland, f' all other kinds of murder" being in the second degree, by force of our statute. An indictment for murder in the first degree, as created by our statute, whether it be called crime or grade, must contain an averment of all the facts which the statute requires to constitute murder in the first degree. Those facts are, so far as this case is concerned, that the killing shall be wilful, deliberate and premeditated. Deliberation and premeditation are just as much facts as the giving the mortal wound, or any other fact in the case. Unless those facts are proved, the defendant cannot be adjudged to die. They cannot be proved, unless they are alleged. That would be in violation of every rule of pleading, and of evidence. By sec. 147 of Art. 30, the jury shall ascertain by their verdict whether the murder be in the first degree or the second degree. The jury cannot be allowed, by the fixed rules and principles of pleading, to find that a killing was wilful, deliberate and premeditated, unless those facts are averred in the indictment. The indictment in this case was not demurrable. It was a good indictment, under which it was competent to find the party guilty of murder in the second degree, and to punish him by imprisonment. But it was not competent, under this indictment, to find a party guilty of murder in the first degree, and punish him with death, because the indictment did not aver a deliberate and premeditated killing, which only is murder in the first degree under the statute and punishable with death. The true construction of the statute must be that on an indictment for murder in the first degree, that is, an indictment averring a wilful, deliberate and premeditated killing, the jury may find a verdict of guilty of murder in the second degree; and so to harmonize the statute with the Common Law rule, that the lesser is included in the greater charge. It cannot be a true construction that on an indictment averring a killing, wilful, felonious, and of malice aforethought, a party can be convicted of a deliberate and premeditated killing, because it does not allege deliberation and premeditation, facts made necessary by the statute to constitute the crime or grade of murder in the first degree, and because such a construction would be in violation of every rule and principle of criminal pleading, and in violation af all established rules of construction. 2 Bishop's Crim. Procd., 3d part of ch. 37, sees. 562-597. The record must be perfect on its face-it must set forth the crime, with all its elements, to which the law affixes the judgment to be pronounced by the Court-matter extrinsic the record cannot aid in supporting the judgment-"the Courts are to judge upon the record itself, that their successors may know the grounds of their judgment." 2 Tidd's Prac., 918. If the record set forth a charge of murder in the second degree, sentence of death cannot be adjudged unless the law affixes that judgment to murder in the second degree. A verdict fixing a higher grade than that charged, cannot aid the judgment or sentence, and enable a higher grade of punishment to be adjudged, because the record would be inharmonious, the indictment being for one crime or grade of crime, and the verdict being for another; and the result would be that, by construction of sections 143 and 137 together, to authorize a judgment of death, it must be determined that allegations in pleading are superseded by the statute, and that a party may be punished for a crime, or grade of crime, with which he is not charged by the indictment, for the reason that a statute, construed by the Court to that end, so provides. Without such a construction, the Court cannot "judge upon the record itself," if when it looks to the record for a foundation of its judgment of death, it finds an indictment which does not authorize the judgment. Bee Smith vs. State, 6 GUI, 425, 429; Rawlings vs. State, 2 Md., 201 ; Black vs. Slate, 2 Md., 376; Cochrane vs. State, 6 Md., 400; State vs. Sutton, 4 GUI, 494 ; Potter's Dwarrie on Stat., 185. If the Maryland statute be so construed as that, under it, 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 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 which declares fl that in all criminal prosecutions every man hath aright to be informed of the accusation against him; to have a copy of the indictment or charge in due time, (if required,) to prepare for his defence, &c." An accusation of a killing, feloniously, wilfully, and of malice aforethought, is not an accusation of "any kind of wilful, deliberate, and premeditated killing." The record shews that the traverser hath not been informed of an accusation against him of wilful, deliberate and premeditated killing, and has not had an indictment averring that crime, or the facts requisite to constitute that crime, or