author: Liss, J.,

text:
    EDWARD J. RUPINSKI et al. v. ANDREW BIEL et al.
    [No. 61,
    September Term, 1979.]

      Decided October 17, 1979.

    The cause was argued before Morton, Melvin and Liss, JJ.

      Douglas W. Biser, with whom was F. Vernon Boozer cm the brief, for appellants.

      James M. Smith, with whom were R. Clark Faint, Jr., and Gebhardt & Smith on the brief, for appellees.
   Liss, J.,

delivered the opinion of the Court.

Josephine G. Ellis and her husband owned a building located in Perry Hall, Baltimore County, Maryland. They were also the sole stockholders of a liquor dispensing corporation known as Harbalt Liquors. She and her husband conducted that business for a period of twelve years during which time her husband suffered two heart attacks. As a consequence, the Ellises decided they could no longer operate the liquor store.

In December of 1976, Mrs. Ellis, on behalf of Harbalt, a Maryland corporation, entered into a contract to sell the liquor license to Spring Pizza, Inc. Spring Pizza, Inc. was the owner of a franchise which it had purchased from Pizza Hut. It proposed to operate a pizza business and to sell alcoholic beverages to its customers from a free standing building located adjacent to the Silver Spring Shopping Center on Belair Road. The officers and directors of Spring Pizza, Inc. were identified as Edward J. Rupinski, James T. Stockdale and Debra D. Schulze, who are the appellants in this case. A number of the individuals protesting the transfer of the license, including Andrew Biel, Charles Link, James A. Persing and others, are listed as the appellees.

The contract between Harbalt and Spring Pizza, Inc. was conditioned on attainment of the approval from the Board of Liquor License Commissioners to transfer the license to the Belair Road address and to reclassify the license from Class A (package goods, beer, wine and liquor) to Class B (beer only). On April 29, 1977, an application for transfer and reclassification was filed by Spring Pizza, Inc. and after a hearing that application was denied by the Board on June 13, 1977 on the ground that the transfer was not required for the accommodation of the public. No appeal was taken from that decision.

Subsequently, a new application for the same relief was filed before the Board of Liquor License Commissioners for Baltimore County which came on for hearing on March 20, 1978. After hearing and argument, the Board, on March 28, 1978, approved the application to transfer the Harbalt license to 8641 Belair Road subject to the restriction that no alcoholic beverages be sold to patrons except with the sale of food. The protestants appealed to the Circuit Court for Baltimore County and after hearing and argument the presiding judge (DeWaters, J.) remanded the case to the Board for its consideration as to whether the premises occupied by Harbalt were “vacated” within the meaning of Article 2B, Section 75 of the Annotated Code of Maryland (1957, 1976 Repl. Vol.). If such “vacation” had in fact occurred, the court indicated the license was null and void.

In the original hearing before the Liquor Board, a witness for the protestants testified that from February of 1977 until June 13, 1977 the premises were occupied by a Suzuki motorcycle dealership and an H & R Block tax office, and that after February of 1977, it had not been occupied as a package liquor store. At the remand hearing, Mrs. Ellis conceded that these facts were accurate but testified that before renewing the license in 1977, she spoke to the Secretary of the Board, Mrs. Anne Eirman, and was advised by her that the license, if renewed, could be sold. On the basis of that information, the Ellises renewed the license. This testimony of Mrs. Ellis was not contradicted.

After this hearing, the Board reaffirmed its decision to approve the transfer of the license for the following reasons:

[T]he license was renewed and, although the transfer was denied at the hearing on June 13,1977, that the contract for the sale of the license was not terminated and subsequently the Spring Pizza, Inc., reapplied for transfer of the license. That during the entire period of time from December 26, 1976, until the hearing of April, 1978, and, in fact, to this day, the transferor retained ownership of the property and testimony was that the tenants could, at any time, be required to leave the premises in order to re-establish the business at the same location. It becomes incumbent upon this Board to decide whether or not the transferor vacated the premises with the intent to terminate the business and the license. Although the business was, in fact, closed and the stock and fixtures sold and removed from the premises, it is the opinion of this Board that the license was not vacated from the premises by reason of the fact that the licensee did not intend to cease operation without the completion of the sale and transfer of the license.
The fact that the contract for the sale of the license was never terminated and the ownership of the property was retained by the licensee indicated an intent to proceed with the transfer of the license and not to vacate the premises in accordance with the requirements of Section 75 of Article 2B of the Annotated Code of Maryland.
For the reasons above stated, the Board reaffirms the conclusion that the subject license as of the time of the consideration of the application for transfer, was, in fact, a valid, viable license and subject to consideration for transfer.

The appellees appealed to the Circuit Court for Baltimore County as authorized by the provisions of Article 2B, Section 175(e) Annotated Code of Maryland (1976 Repl. Yol.) which provides as follows:

(l)(i) Upon the hearing of such appeal, the action of the local board shall be presumed by the court to be proper and to best serve the public interest. The burden of proof shall be upon the petitioner to show that the decision complained of was against the public interest and that the local board’s discretion in rendering its decision was not honestly and fairly exercised, or that such decision was arbitrary, or procured by fraud, or unsupported by any substantial evidence, or was unreasonable, or that such decision was beyond the powers of the board, and was illegal. The case shall be heard by the court without the intervention of a jury. If in the opinion of the court it is impracticable to determine the question presented to the court, in the ease on appeal, without the hearing of additional evidence, or if in the opinion of the court any qualified litigant has been deprived of the opportunity to offer evidence, or if the interests of justice otherwise require that further evidence should be taken, the court may hear such additional testimony to such extent and in such manner as may be necessary.

After a hearing and argument Judge DeWaters issued the following memorandum reversing the Board of Liquor License Commissioners in which he said:

This is an appeal from the Board of Liquor License Commissioners for Baltimore County, hereinafter referred to as the board. The case was argued before this court on an earlier occasion at which time the matter was remanded to the board for further testimony. Further testimony was required to determine the issue in this case involving the expiration of the license which is sought to be transferred.
On September 9,1978, testimony was taken by the board on this issue. The testimony was elicted [sic] from Josephine G. Ellis. Mrs. Ellis testified that her husband had suffered two heart attacks and it was decided that the liquor operation would be abandoned. Harbalt Liquors, Inc. were the holders of the license. On December 20, 1976 an agreement was signed for the sale of the liquor license to Spring Pizza, Inc. In Feb. of 1977 the liquor operation ceased and all stock and inventory was sold. The premises was leased to businesses which do not conduct any type of liquor operation. The license has not been used in any establishment for a liquor business since Harbalt Liquors, Inc. ceased operations. Subsequent to ceasing operations the board was contacted and license fees have been kept current. On April 29,1977 an application for transfer was filed and denied on June 13,1977. Based on this evidence the board ruled that the license had not expired and granted the requested transfer.

Article 2B, sec. 75(a) states as follows:

“On the tenth day after the holder of any license issued under the provisions of this article shall have vacated, or been evicted from the premises for which the license was issued, the license shall expire unless an application for approval of a transfer thereof to another location of assignment to another person pursuant to § 74 of this article or an application pursuant to § 78 of this article has been approved or is then pending. However, the official authorized to issue licenses, in his discretion, may postpone the expiration for an additional period not exceeding 20 days in any case to avoid undue hardship.”
The board does not have authority to grant this transfer unless the license has not expired. The board is controlled by the statute which governs the expiration of a liquor license. The controlling statute is Art. 2B, see. 75(a), supra. It is clear from the facts in this case that a transfer was not granted within 10 days and it is equally clear that an application for approval of a transfer was not filed within 10 days, so that such application could be pending. The board’s decision must, therefore, stand or fall on the proper interpretation of the word “vacated” in the statute. The testimony of Mrs. Ellis establishes the fact that the premises were indeed vacated. Her testimony reveals that the operation of a liquor license ceased to exist in February 1977. Mrs. Ellis testified that the premises had not been used since that date for a liquor license operation, nor has the license been used on any other premises. She also established the fact that all stock and inventory has been sold and that the holder of the license was a corporation that leased the premises from the Ellises. A ruling that this does not constitute “vacated” within the meaning of the statute is not supported by any substantial evidence and is unreasonable. The board held that the contract signed on December 20, 1976 and the continuing intent of the parties to transfer the license coupled with the fact that the Ellises continued to own the premises avoided the term “vacated” as used in Art. 2B, sec. 75(a), supra. The reasoning is faulty because the holder of the license was Harbalt Liquors, Inc. and not the Ellises.
For reasons stated above the ruling of the board in the above case is reversed.

The appellants, still unwilling to surrender, noted an appeal to this Court in spite of the provisions of Article 2B, Section 175(f) which provide that when a circuit court shall have reviewed an appeal from the Liquor Board:

The decision of the court thus given shall be final and effective at once. No further appeal shall lie nor shall there be any other remedy by which the local board’s decision may be reviewed in court, either by way of mandamus, injunction, certiorari or otherwise. However, if any judge of the circuit court of any county, or the Baltimore City Court, shall in any case finally decide a point of law at variance with any decision previously rendered by any other judge of the State on the same question, an appeal may be taken from the decision rendered to the Court of Special Appeals. Any such appeal shall not stay the action of the lower court. The Court of Special Appeals shall only decide the question of law involved in such an appeal and shall not pass upon any question of fact.

The appellants, recognizing their problem in overcoming the hurdle of jurisdiction in this Court, launched an all-out attack on the constitutionality of Article 2B, Section 175(f) contending that the restriction limiting an appeal to this Court only to those instances when “any judge of the circuit court of any county, or the Baltimore City Court, shall in any case decide a point of law at variance with any decision previously rendered by any other judge of the State on the same question,” amounted to a denial of equal protection and due process. The appellees devoted a substantial portion of their brief to this issue apparently anticipating a motion to dismiss their appeal under Article 2B, Section 175(f). The issue became moot, however, when the appellants were granted permission by this Court to supplement the record on appeal by including in the record the case of Seekfprd v. Board of Liquor License Commissioners for Baltimore County, filed in the Circuit Court for Baltimore County, Misc. Case No. 5923. An examination of that case indicates that in a case similar to the one here considered the presiding judge, H. Kemp MacDaniel, had on July 8,1976 ruled that “During each year that the license had been renewed the annual fee had been paid and, therefore, the privilege represented by that license was vested by reason of its continued and proper exercise.” Counsel for appellees conceded at argument that this ruling is sufficient to meet the réquirements of Article 2B, Section 175(f), and that jurisdiction to consider this appeal is vested in this Court. Under these circumstances, it is not necessary for us to consider or rule on the constitutionality of that section.

The sole question to be decided by this appeal is whether the circuit court was correct in holding that the alcoholic beverage license involved in this dispute expired by operation of law. We are, of course, aware of the limitation imposed upon us that we may only decide a question of law involved in this case and shall not pass upon any question of fact. We conclude that the question of law here involved is the meaning of the word “vacate” as set out in Article 2B, Section 75(a).

The issuance or transfer of liquor licenses confers no property rights on the holders, and furthermore, the licenses are subject to suspension, restriction or revocation pursuant to the rules and regulations promulgated under Article 2B. The holder of a license possesses a mere privilege. See Dundalk Liquor Co. v. Tawes, 201 Md. 58, 92 A.2d 560 (1953); Federico v. Bratten, 181 Md. 507, 30 A.2d 776 (1943).

The Court of Appeals has said that a term in a statute, when not defined in the statute itself, should be read according to its commonly accepted meaning. Williams v. Loyola College, 257 Md. 316, 263 A.2d 5 (1970); Simpler v. State, ex rel. Boyd, 223 Md. 456, 165 A.2d 464 (1960). The intent of the legislature is to be sought from the words used in the statute and to ascertain that intent the Court will consider the words by their natural and ordinary signification. State Farm Mutual v. Insurance Commissioner of Maryland, 283 Md. 663, 392 A.2d 1114 (1978); Schweitzer v. Brewer, 280 Md. 430, 374 A.2d 347 (1977); Harden v. M.T.A., 277 Md. 399, 354 A.2d 817 (1976); Maryland-National Capital Park & Planning Comm. v. Rockville, 272 Md. 550, 325 A.2d 748 (1974).

We have been unable to find any cases in this state interpreting or applying the meaning of the word “vacated” as used within the context of Article 2B, Section 75(a). Black’s Law Dictionary 1717 (4th ed. 1968) defines vacate in the context of this case as follows: “To move out; to make vacant or empty; to leave; especially, to surrender possession by removal; to cease from occupancy.”

The Court of Appeals has on several occasions considered the question of what may constitute a vacancy within the context of a forfeiture of insurance coverage where a premises is permitted to remain vacant. In Norris v. Conn. Fire Ins. Co., 115 Md. 174, 178-79, 80 A. 960 (1911) the Court had before it a policy of insurance which provided that where a house occupied by the assured was permitted to remain vacant for a period of ten days the insurance coverage was forfeited. The Court there said: See also Agricultural Ins. Co. of Watertown v. Hamilton, 82 Md. 88, 33 A. 429 (1895).

[W]hen the occupant of a dwelling house moves out with his family, taking part of his furniture and all the wearing apparel of the family and makes the place of his abode in another town, although he may have an intention of returning in eight or ten months, such dwelling house while thus deserted must be regarded as unoccupied; that is, vacated, according to the natural and ordinarily received import of those terms.

There is no real dispute between the parties to this case as to the factual situation. The only controversy is whether the facts as agreed upon amounted to such a vacating of the licensed premises as to make the license null and void as a matter of law. We conclude that the trial court was correct in holding that Harbalt had, in fact, vacated the premises for more than ten days in February of 1977 when it removed all stock and inventory and Mrs. Ellis leased the licensed premises to other businesses which were not related in any manner to an operation involving an alcoholic beverage license. Section 75(a) provides for only two exceptions to the rule that the license for the leased premises shall expire on the tenth day after eviction or vacation. These exceptions are found in Section 78 which is concerned primarily with the death of a licensee, not here applicable, and Section 79 which involves a situation where “an application for transfer has been approved or is pending.” From our reading of the record, it is clear that the first period of vacation began in February, 1977 and ended on April 29, 1977 when the first application for transfer, afterwards denied, was filed. The second period began on June 13,1977 and ended on January 26, 1978 when the subsequent application for transfer was filed. It is undisputed that within these periods of time the licensee (Harbalt) removed its inventory, ceased operations, and the premises were rented to other concerns not engaged in the liquor business, and that there were no applications for transfer either pending or approved.

We do not find the fact that Harbalt had entered into a contract to transfer the license to Spring Pizza, Inc. before it vacated the premises is of any significance. Nor does the alleged advice given to the Ellises by an employee of the Liquor Board as to the effect of the renewal of the license change the clear directive found in the language of Section 75(a) of Article 2B. The enactment of that section was apparently based on the public policy that a license should be granted only when necessary for the accommodation of the general public and that when the license is no longer being utilized it should be considered null and void.

Judgment sustained.

Costs to be paid by appellants.

      . Article 2B, Sec. 75(a) has since been amended and now provides for a 180 day vacation period; however, the amendment does not affect our holding in this case.


source: Caselaw Access Project

author: Gilbert, C. J.,

license: Public Domain

text:
    IN RE: RICKY B.
    [No. 102,
    September Term, 1979.]

      Decided October 17, 1979.

      The cause was argued before Gilbert, C. J., and Moylan and Weant, JJ.
    Submitted on brief by Alan H. Murrell, Public Defender, and George E. Burns, Jr., Assistant Public Defender, for appellant.

      William H. Kenety, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Arthur Kravetz, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

THE PREFACE

Being practical is often a short answer to a long problem. Sometimes, however, the short answer results in unnecessary complications. This appeal involves an apparent pragmatic conclusion reached by a trial judge in the Circuit Court for Prince George’s County which, while seemingly practical, is incorrect. We shall, for the reasons hereinafter stated, reverse and remand for further proceedings consistent with this opinion.

THE FACTS

The record before us discloses that the appellant, Ricky B., then 15 years of age, was charged in a series of juvenile petitions, and that he was also charged under an eighteen (18) count indictment for offenses not within the exclusive jurisdiction of the juvenile court. See Md. Courts and Judicial Proceedings Code Ann. § 3-804 (d).

It developed that the appellant sought what has been stylistically known as a “reverse waiver.” He asked the circuit court to waive exclusive criminal jurisdiction over him and to refer the rape and related charges to the juvenile court. Md. Ann. Code art. 27, § 594A; Kennedy v. State, 21 Md. App. 234, 319 A.2d 850 (1974). At the same time the State, pursuant to Courts Art. § 3-817, requested the juvenile court to waive jurisdiction over appellant so that the State could subject Ricky B. to the full panoply of the criminal law. The “reverse waiver” and the “waiver” petitions were set for hearing before the same judge on the same day. As it happened the “reyerse waiver” was the first matter considered. The hearing judge concluded that the appellant was “well beyond the amenability of the Juvenile Court to treat, or rehabilitate” appellant. He declined to waive jurisdiction to the juvenile court. No immediate appeal has been nor may be taken from that decision. In re Appeal No. 507, 34 Md. App. 440, 367 A.2d 553 (1977).

The hearing judge then turned his attention to the State’s request for waiver from the juvenile court to the circuit court. The judge said:

“Call the juvenile numbers, and I will do that summarily, ... which I think the law provides for.
Having just ruled in the criminal matter ... that he [appellant] would not be waived back [s/c] to Juvenile Court, I now find in the juvenile matter, summarily, that he should be waived up to the adult court, and I will sign such a waiver order in each case.”

THE LAW

By Md. Ann. Code art. 27, § 594A (b) the Legislature has mandated that:

“In making a determination as to waiver of [criminal] jurisdiction the [hearing] court shall consider the following:
(1) Age of child;
(2) Mental and physical condition of child;
(3) The child’s amenability to treatment in any institution, facility, or program available to delinquents;
(4) The nature of the alleged offense; and
(5) The public safety.”

When a “reverse waiver” hearing is held, the burden of demonstrating that the waiver should be exercised is carried by the party initiating it, i.e., the juvenile. Kennedy v. State, supra at 240.

The five factors of Article 27, § 594A (b) are also found, mot á mot, in Courts Art. § 3-817 (d). The only variance appearing in section 3-817 (d) from that of Art. 27, § 594A (b) is the legislative fia tin the former that the hearing court must consider the following “criteria individually and in relation to each other on the record.” In re Johnson, 17 Md. App. 705, 712, 304 A.2d 859, 863 (1973).

There is no real difference between Courts Art. § 3-817(d) and Article 27, § 594A (b) insofar as the legislative direction as to how the factors are to be weighed is concerned. We made clear in Kennedy v. State, supra, that the weighing of the factors, whether they appear in the Courts Art. § 3-817(d) or Article 27, § 594A (b), is “similar.” 21 Md. App. at 240. Yet, there is a difference in the manner in which the two statutes are applied. When a juvenile stands accused of one of those offenses expressly excluded from juvenile court jurisdiction, he or she carries the burden of establishing, under the five factors of Art. 27, § 594A (b), that the adult or criminal court should waive jurisdiction to the juvenile court. He or she must demonstrate to the hearing judge that the “reverse waiver” is “in the interest of the child or society.” Md. Ann. Code art. 27, § 594A (a). King v. State, 36 Md. App. 124, 128, 373 A.2d 292, 295, cert. denied, 281 Md. 740 (1977). On the other hand, when it is the State that seeks a waiver of jurisdiction from the juvenile court to the adult or criminal court, the State shoulders the onus of showing by a preponderance of the evidence that a weighing of five factors tilts in favor of waiver and, patently, against the juvenile. In re Trader, 20 Md. App. 1, 315 A.2d 528, rev’d on other grounds, 272 Md. 364, 325 A.2d 398 (1974); In re Barker, 17 Md. App. 714, 305 A.2d 211 (1973).

It is possible that when a hearing is held on “reverse waiver” that the juvenile will fail to meet his burden. It is equally possible that when the hearing is held on the juvenile waiver that the State’s proof will fail to pass muster, thus, leaving everyone where it finds them.

Courts Art. § 3-817 (g) provides:

“If the [juvenile] court has once waived its jurisdiction with respect to a child ... and that child is subsequently brought before the [juvenile] court on another charge of delinquency, the [juvenile] court may waive its jurisdiction in the subsequent proceeding after summary review.”

The exception to a full-blown waiver hearing can, under the statute, only occur when there has been a prior waiver by the juvenile court. The statute does not permit the “summary review” when, as here, there has been a “reverse waiver” hearing by the adult or criminal court. The statute operates in one direction only; it does not allow the procedural short cut employed by the judge in the instant case. When the General Assembly has meticulously set forth a procedure to be followed by courts in considering the waiver of juvenile jurisdiction, the courts may not, in the guise of pragmatism, judicially amend the statute.

What the hearing judge did in the instant case was to waive summarily juvenile jurisdiction over four otherwise exclusively juvenile offenses, because the juvenile fell short of proving by a preponderance of the evidence that the immediately previously heard “reverse waiver,” regarding the eighteen count indictment, was in the interest of the juvenile or society. By so doing the court seemingly erroneously shifted the State’s waiver hearing burden to the back of the juvenile and eliminated entirely the State’s obligation to demonstrate that jurisdiction should have been waived. Just as “a small leak ... [may] sink a great ship” so, too, may a procedural error overturn a trial court’s ruling.

We paraphrase what we said in the beginning by noting that some short cuts turn out to be the longest way. The case must be reversed and remanded in order that there can be a valid waiver hearing within the meaning of Courts Art. § 3-817 (d).

Order waiving juvenile jurisdiction reversed and case remanded for further proceedings.

Costs are not reallocated as part of the judgment of this Court pursuant to Maryland Rule 1082F.

      . “The great weakness of Pragmatism is that it ends by being of no use to anybody/’ Thomas Stearns Eliot, 1888-1965, Francis Herbert Bradley.

      . The four juvenile petitions charged appellant with:
      (1) Stealing and disassembling a bicycle in Cheverly, Maryland, on June 4, 1978.
      (2) Breaking and entering a dwelling on Flagstaff Avenue in Prince George’s County, on June 9, 1978.
      (3) Breaking and entering a residence in Chapel Oaks, Maryland and stealing property worth more than $100.00, on June 27, 1978.

        (4) Breaking and entering the Fiesta Amusement Arcade office in Fairmont Heights, Maryland, on August 23, 1978.

      . The indictment charged the appellant with three (3) counts of first degree rape; two (2) counts of second degree rape; three (3) counts of attempted first degree rape; two (2) counts of attempted second degree rape; two (2) counts of assault with intent to rape; two (2) counts of assault and battery; two (2) counts of housebreaking; burglary; and destruction of private property.

      . The quoted and italicized language was added to section 3-817(d) by 1977 Md. Laws, ch. 490. The language is obviously taken from In re Johnson, supra. By enacting ch. 490, tne General Assembly turned case law into statutory law.

      . Jo Petty, Wings of Silver (C. R. Gibson Co., 1967).


text:
    RALPH GAYLORD STANLEY v. STATE OF MARYLAND
    [No. 112,
    September Term, 1979.]

      Decided October 17, 1979.

    The cause was argued before Morton, Melvin and Liss, JJ.

      Martha V. Weisheit, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Deborah K. Handel, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Gary Graham, Assistant State's Attorney for Baltimore City, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

Ralph Gaylord Stanley, appellant, was found guilty of burglary by a jury in the Criminal Court of Baltimore on January 19, 1979, and was sentenced to a ten year term by Judge J. Harold Grady.

Evidence adduced at trial indicated: that the dwelling of a Baltimore City resident was burglarized while the victim was at home; that the victim investigated a noise on the upper floor of his house and discovered two lamps missing which he subsequently found on his front lawn; that he found his television had been removed from one room and placed in another; that the victim retrieved the lamps and as he was doing so noticed the appellant coming down the stairs which led from the upper floor of his house; and that he apprehended the appellant and subdued him until the police arrived.

Appellant raises two issues to be decided by this appeal:

1. Whether in the absence of a request for such an instruction the failure of the trial judge sua sponte to instruct the jury of the standard of proof required to convict the accused of the crime charged amounted to a denial of due process?
2. Whether the evidence was sufficient to sustain the appellant’s conviction for burglary?

We shall consider the second of these issues initially and dispose of it summarily. From our reading of the record, we are convinced that by applying the test required to be used in determining the legal sufficiency of the evidence necessary to sustain a conviction, the trial judge was eminently correct in submitting the case to the jury. The test for sufficiency of evidence has been stated to be “whether the evidence either shows directly, or supports a rational inference of, the facts to be proved, from which the trier of fact could fairly be convinced beyond a reasonable doubt, of the defendant’s guilt of the offense charged.” Metz v. State, 9 Md. App. 15, 20, 262 A.2d 331 (1970). See Williams v. State, 5 Md. App. 450, 247 A.2d 731 (1968). It is not our duty to inquire into and weigh the evidence in order to ascertain whether the State has proved its case beyond a reasonable doubt, but rather it is our task to determine only if there was relevant evidence adduced at the trial which would sustain a conviction. Atkins v. State, 40 Md. App. 461, 391 A.2d 868 (1978); Spease v. State, 21 Md. App. 269, 319 A.2d 560 (1974), aff'd, 275 Md. 88, 338 A.2d 284 (1975).

The record clearly shows that the appellant stated that he unlatched the door of the premises entered by him, and the State’s evidence indicates that the screen door was torn or cut to gain entry. Appellant was apprehended as he descended the second floor stairs of the dwelling that was the site of the burglary. There was also evidence that two valuable lamps had been removed from the house and a television set had been taken from one room and placed in another. There was sufficient evidence to show directly or to support a rational inference that the appellant had broken into and entered at night the dwelling of the prosecuting witness with the necessary intent to commit the felony of larceny over $100. See Brooks v. State, 277 Md. 155, 353 A.2d 217 (1976); Sample v. State, 33 Md. App. 398, 365 A.2d 773 (1976).

The remaining issue raised in this case, so far as we have been able to determine, is one of first impression. The issue arose in a somewhat unusual manner. At the conclusion of the evidence, the trial judge called counsel to the bench and stated: “This is a perfect case not to instruct the jury, it seems to me. It’s so obvious. Do you have any requests for instructions?” Neither counsel requested the court to give any instructions to the jury, and counsel argued to the jury without the benefit of advisory instructions. Defense counsel during argument did make the following observation to the jury on the question of burden of proof. He said:

Just a little background, and as you are all aware, I’m sure, but I will state again that the defendant is presumed innocent until proven guilty and that presumption attends him throughout the entire trial. And now we are at the point where you have to give it your determination as to find him guilty or innocent. And in order to find him guilty, you must find beyond a reasonable doubt and to a moral certainty that the defendant is guilty of the two matters that are being submitted to you...

Appellant contends that in every criminal case tried before a jury, whether instructions are requested by counsel or not, that a failure of the court to instruct the jury on the burden of proof imposed on the State to prove all elements of the charges against the defendant beyond a reasonable doubt and to a moral certainty amounts to constitutional error which mandates the reversal of the conviction.

Historically, the Court of Appeals held for many years that the giving of instructions to a jury in a criminal case was a discretionary matter resting with the trial judge (even where instructions were requested by counsel), and that the discretionary ruling on the giving of instructions would not be reviewed on appeal. In the case of Broll v. State, 45 Md. 356, 359-60, (1876), the Court of Appeals stated its rationale for that holding:

The appellant after the close of the evidence, asked the court to instruct the jury that if they should find that the appellant was not the owner of the pungy, “James Bulack,” at the time named in the indictment, then he was not answerable, and should not be convicted on the fifth and sixth counts of the indictment. The other counts had been abandoned by' the State. The Circuit Court refused to grant the instruction, giving in writing as its reason therefor, that “the jury being by the Constitution, judges of the law of criminal cases tried by them, the court declines to instruct them in this case.” The Constitution of 1867, Art. 15, sec. 5, provides, that “in the trial of all criminal cases, the jury shall be the judges of law as well as of fact. The jury then being judges of law as well as of fact in criminal cases, would not be bound by any instructions given by the court, but would be at perfect liberty to utterly disregard them and find a * verdict in direct opposition to them. No court in this State can be required by the counsel or jury, to give instructions either upon the law or the legal effect of the evidence given at the trial. This seems to have been the opinion of this court, held in Franklin v. State, 12 Md. 246, 249. The court may in its discretion, advise the jury as to the law and legal effect of the evidence, but is.not bound to do so, and being a matter entirely within its discretion, its refusal to do so cannot be reviewed by this court, even if this case is now properly before us upon this appeal,----

In the later cases of Swann v. State, 64 Md. 423, 1 A. 872 (1885), and Esterline v. State, 105 Md. 629, 66 A. 269 (1907), the Court of Appeals followed the holding in the Broil case.

By rule, as well as by decision, it is now the law of Maryland that “when requested to do so, it is incumbent upon the trial judge in a criminal case to give an advisory instruction on every point of law essential to the crime charged if supported by evidence.” See England v. State, 274 Md. 264, 275, 334 A.2d 98 (1975). However, advisory instructions are required “only where a request for such instructions is made.” Couser v. State, 36 Md. App. 485, 499, 374 A. 2d 399 (1977). In the present case, appellant made no such request for instructions, but he asseverates that such a request was unnecessary as the trial judge in every criminal case is constitutionally required to instruct the jury as to the “beyond a reasonable doubt” standard of proof and is duty bound to instruct the trier of fact and law with regard to the presumption of innocence.

Of fundamental importance to our system of criminal justice is the basic tenet that an individual is deemed to be innocent until proven guilty. The Supreme Court observed in Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), that the “presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial----” In In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L.Ed.2d 368 (1970), the Supreme Court held that the Due Process Clause of the Fourteenth Amendment requires proof beyond a reasonable doubt of a defendant’s guilt. In Winship, Mr. Justice Brennan quoted Speiser v. Randall, 357 U.S. 513, 525-26, 78 S. Ct. 1332, 2 L.Ed.2d 1460 (1958):

Where one party has at stake an interest of transcending value — as a criminal defendant his liberty — this margin of error is reduced as to him by the process of placing on the other party the burden of ... persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of ... convincing the factfinder of his guilt.

Justice Brennan added:

Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. [397 U.S. at 364.]

Appellant contends that on the strength of the holding in Winship, the trial judge in every criminal case is required to give an instruction that includes the reasonable doubt standard and that the failure to so instruct amounts to plain error. Appellant also asserts, again relying on Winship, that a beyond a reasonable doubt instruction is the only means of insuring compliance with the constitutionally mandated standard. He concedes, however, that the question of proper jury instructions was not considered in the Winship case. Although Winship clearly raises the reasonable doubt standard to constitutional proportions, it does not stand for the proposition that an instruction on proof beyond a reasonable doubt is mandatory; nor does it hold that the absence of the instruction is reversible error.

Appellant also relies on Taylor v. Kentucky, 436 U.S. 478, 98 S. Ct. 1930, 56 L.Ed.2d 468 (1978), in which the Supreme Court reversed a criminal conviction resulting from a trial in which the judge had refused to give a requested jury instruction on the presumption of innocence. However, it was because of the cumulative effect of potentially damaging circumstances peculiar to the case that the Court found that in order to safeguard the defendant’s rights, an instruction as to presumption of innocence was required where defense counsel made a timely motion.

The Taylor case was further explicated by Kentucky v. Whorton, 441 U.S. 786, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979), in which the trial judge refused a requested jury instruction as to the presumption of the accused’s innocence. There, the Court explained:

While this Court in Taylor reversed a conviction resulting from a trial in which the judge had refused to give a requested instruction on the presumption of innocence, the Court did not there fashion a new rule of constitutional law requiring that such an instruction be given in every criminal case. Rather, the Court’s opinion focused on the failure to give the instruction as it related to the overall fairness of the trial considered in its entirety. [60 L.Ed.2d at 643.]

The Court also decided:

... the failure to give a requested instruction on the presumption of innocence does not in and of itself violate the Constitution. Under Taylor, such a failure must be evaluated in light of the totality of the circumstances ... to determine whether the defendant received a constitutionally fair trial. [Id.]

As the failure to give requested instructions on the presumption of innocence is not per se violative of the Constitution, it is pellucid then that an instance where no request whatsoever for instructions is made cannot be deemed a violation of constitutional safeguards in and of itself — assuming the record clearly indicates that the trial as a whole was a constitutionally fair one. From our careful reading of the record, we conclude that the appellant did receive a constitutionally fair trial.

Appellant in his reply brief cites United States ex rel. Castleberry v. Sielaff, 446 F.Supp. 451 (N.D. Ill. 1978), which found constitutional error where absent a request, there was a failure by the trial court to give a reasonable doubt-presumption of innocence instruction. Castleberry, which was a decision influenced by inadequacy of counsel, was decided before Kentucky v. Whorton, supra. Thus, the conclusion in Castleberry that a state court’s refusal to instruct on the presumption of innocence and the state’s burden of proving guilt beyond a reasonable doubt would be error of constitutional proportions is not the view held by the Supreme Court of the United States.

The appellant concedes that he failed to submit specific prayers for instructions and failed to object when no instructions were rendered by the court. The Court of Appeals addressed such a situation in Giles v. State, 229 Md. 370, 183 A.2d 359 (1962), appeal dism. 372 U.S. 767, 83 S.Ct. 1102, 10 L.Ed.2d 137 (1963), where it said:

While Rule 756 g permits this Court of its own motion to take cognizance of and correct any plain error material to the rights of the accused even though not included in the assignment of errors, we are unable to say that the failure to request an instruction or to object to the failure to give one under the circumstances in this case was such an error as this Court ought to take notice of.
Furthermore, even if it is assumed that the defendants had a constitutional right to have the jury instructed as to the law, it is clear that in a case such as this, where they were represented by competent and experienced counsel, even constitutional rights may be waived by not asserting them. [229 Md. at 387.]

See also Dimeny v. State, 274 Md. 661, 670, 338 A.2d 56 (1975), cert. denied, 423 U.S. 1047, 96 S. Ct. 857, 47 L.Ed.2d 84 (1976).

It is clear then that appellant waived his right to have the jury instructed as to burden of proof and cannot now complain of the absence of such instructions. It may well be that this was a decision consciously made by defense counsel for the reason of trial tactics. We obviously do not reach that question in this case.

Judgment affirmed.

Costs to be paid by appellant.

      . Md. Rule 757b reads as follows: The court may, and at the request of any party shall, give those advisory instructions to the jury as correctly state the applicable law. The court may give its instructions orally or, with the consent of the parties, in writing. The court need not grant any requested instruction if the matter is fairly covered by the instructions actually given. In every case in which instructions are given to the jury the court shall instruct the jury that they are the judges of the law and that the court’s instructions are advisory only.

      . Currently Rule 757h.