text:
    DONALD STUART PARKER v. STATE OF MARYLAND
    [No. 82,
    September Term, 1968.]

      Decided November 19, 1968.

    The cause was submitted to Murphy, C.J., and Anderson, Morton, Orth, and Thompson, JJ.

      James W. McAllister lor appellant.

      Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. Moylan, Jr., State's Attorney jor Baltimore City, and Thomas N. Biddison, Jr., Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

The appellant and a co-defendant, jointly indicted for possession and control of a narcotic drug, were jointly tried in the Criminal Court of Baltimore. The appellant was found guilty generally and given a sentence of 5 years.

The appellant’s sole contention on appeal from the judgment is that his warrantless arrest was illegal as made without probable cause and therefore evidence received against him was improperly admitted. There is no merit to the contention. A police officer assigned to the Narcotic Unit testified that he saw the appellant and the co-defendant walking on the street. The appellant removed a brown manila envelope from his right coat pocket and dropped it in an open trash container on the sidewalk. The officer recovered the brown envelope. In the envelope were 70 small clear gelatin capsules containing a white powder. The appellant was arrested. Upon analysis by a United States Customs chemist the white powder was determined to be a narcotic drug, heroin hydrochloride. The legality of the arrest here is immaterial for two reasons. First, there was no objection made to the admission of the evidence now challenged. By the provisions of Md. Rule, 522d2, made applicable to criminal causes by Md. Rule, 725f, every objection to the admissibility of evidence shall be made at the time when such evidence is offered, or as soon thereafter as the objection to its admissibility shall have become apparent; otherwise the objection shall be treated as waived. Nor was there a motion to exclude or suppress the evidence as provided by Md. Rule, 729. So even if the arrest were illegal, objection to the evidence was waived by the failure to object to its admission or to move for its exclusion and it had the same probative force as if competent. Gaudio and Bucci v. State, 1 Md. App. 455. See Baker v. State, 3 Md. App. 251. Second, it is clear that the challenged evidence was not seized by a search in the constitutional sense; the appellant abandoned the envelope and its contents by throwing it in the trash container on the public street. Where evidence is not seized as a result of an unreasonable search, it is not rendered inadmissible by an illegal arrest. Fisher v. State, 1 Md. App. 505. See Henderson v. Warden, 237 Md. 519; Matthews v. State, 237 Md. 384; Davis v. State, 2 Md. App. 630; Boone v. State, 2 Md. App. 479.

Judgment affirmed.

      . Jerome Franklin Carrol, not a party on this appeal, was also found guilty generally and sentenced to 2 years.


source: Caselaw Access Project

author: Orth, J.,

license: Public Domain

text:
    MINNIE JACKSON v. STATE OF MARYLAND
    [No. 120,
    September Term, 1968.]

      Decided November 19, 1968.

      The cause was submitted to Murphy, C.J., and AndjJrson, Morton, Orth, and Thompson, JJ.

      Nelson R. K and el for appellant.

      Dickee M. Howat'd, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and Michael Kaminkow, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

The question presented on this appeal is whether the evidence was sufficient to sustain the appellant’s conviction of receiving stolen goods. As the appellant was found guilty by the Criminal Court of Baltimore, sitting as a jury, our function is to determine whether the judgment of the trial court was clearly erroneous on the evidence. Md. Rules, 1086. See Williams v. State, 5 Md. App. 450. We find that it was.

The State produced a store detective for Hochschild Kohn & Co. Inc. who testified that on 16 August 1967 about 4:00 P.M. he was in the store at Howard and Lexington Streets “making my rounds.” He received word to go to the record department. In the record department he saw a young man take a couple of albums and place the munder his jacket. At that point the appellant and another girl came into the department and approached the young man. He put the records back and all three walked out of the store to Lexington Street. The detective went to the Hochschild Kohn store at Eutaw and Sara-toga Streets. He noticed that the three persons he had seen in the record department had come into the store and “were hanging around these leather coats.” The appellant, who was carrying a large bag, grabbed a leather jacket off the rack and all the detective could see was her “hand go down” because the other girl was holding up a dress, obstructing the view. The young man “disappeared” and the two girls proceeded toward a door leading from the store. They stopped. The girl again held up the dress and the appellant tried to take the leather (suede) jacket out of the bag she was carrying. The detective arrested the two .girls. The suede jacket, valued at $69, was identified as the property of Hochschild Kohn & Co. Inc., which was shown to be a corporation as alleged in the indictment. The appellant offered no evidence. The court granted a motion for judgment of acquittal as to the first four counts of the indictment and found the appellant guilty of receiving stolen goods charged in the fifth count. She was sentenced to two years to run concurrently with a sentence she was then serving.

We do not think that this evidence, either directly or by rational inferences therefrom, was sufficient for the trial court to be convinced beyond a reasonable doubt that the appellant was guilty of receiving stolen goods. While it showed that she stole the suede jacket, it did not prove the elements necessary to establish the crime of receiving stolen .goods, for it did not show that she “received” stolen goods. See Dixon v. State, 1 Md. App. 623. It is firmly established that a person who is a principal thief cannot be found guilty of criminally receiving the goods stolen, for the reason that he cannot receive from himself. Osborne v. State, 4 Md. App. 57, 60. Since the evidence was not legally sufficient to sustain the conviction, the judgment of the trial court on the evidence was clearly erroneous and we must set it aside.

Judgment reversed; case remanded for a new trial.

      . At the penally stage of the proceedings it was shown that the appellant had prior criminal convictions for larceny and shoplifting and had twice violated the terms of probation imposed when sentences were suspended. She claimed that she had become a drug addict in 1963 when she was 17 years old and now had “an eighty dollar a day habit.” She stole to support the habit and requested that she receive treatment.

      . It may also have been sufficient to show that the appellant violated the statutory proscriptions with regard to shoplifting, Md. Code, Art. 27, § 551A.

      . If the receiving takes place subsequent to and after the completion of the larceny, one who participated in such crime as a confederate of the thief may nevertheless be convicted of receiving stolen property, but the rule is otherwise if the receiving is embraced in the caption and asportation. Osborne v. State, supra, at 60. In the instant case there was no evidence whatsoever that the appellant was other than the principal thief or that she received any goods subsequent to the larceny.


author: Murphy, C.J.,

text:
    JOHN WILLARD BLANN v. DIRECTOR, PATUXENT INSTITUTION

      [No. 192,

    September Term, 1967.]

      Decided November 20, 1968.

    Before Murphy, C.J., and Anderson, Morton, Orth, and Thompson, JJ.
   Murphy, C.J.,

delivered the opinion of the Court.

This is an application for leave to appeal from an order of Judge George B. Rasin, Jr., in the Circuit Court for Talbot County denying the relief prayed in a petition under the Uniform Post Conviction Procedure Act.

In his amended post conviction petition, applicant alleged in substance:

1. That he was illegally arrested and, as a consequence, the search and seizure of a weapon and wallet belonging to the victim were likewise illegal.
2. That as a result of his illegal arrest, he was placed in an illegal one-man lineup and that his identification in that lineup caused him to give a confession to the crime.
3. That as a result of the illegal arrest, the illegal search and seizure, the illegal lineup, and the illegal confession, he was thereby induced to plead guilty to the crime of robbery with a deadly weapon (for which he received an eight-year sentence).

In its opinion denying relief, the court below ruled as a matter of law that the only question to be considered was whether the petitioner’s plea of guilty was freely and voluntarily given. It expressly declined to permit the petitioner to “go into the details of his original apprehension, identification and the giving of his statement to form the basis of his contention that his guilty plea was involuntary.” In an addendum to its opinion, the court made a similar ruling refusing to consider evidence of the effect of the alleged illegally seized evidence on the voluntariness of petitioner’s guilty plea, and concluded that “by pleading guilty [petitioner] waived his right to contest his original arrest and search and seizure of physical evidence.”

At the hearing, petitioner’s counsel made a proffer of testimony of two witnesses concerning petitioner’s apprehension and identification at the police barracks at Easton, but the court, in accordance with its view that the sole question to be considered was whether the guilty plea was voluntary, declined to hear such witnesses on petitioner’s behalf.

The petitioner then testified that he had a seventh grade education; that he had “four prior experiences” with court proceedings and was familiar with such proceedings; that he knew what a guilty plea meant; that he knew that the maximum penalty for the crime with which he was charged was twenty years; and that nobody threatened him in order to obtain his plea of guilty, nor were any promises made to him. He further testified, according to the lower court’s opinion, “that after his identification, which he now believes was improper, and his confession, which he now believes was improper, that he felt there was no point in pleading not guilty.” After hearing further testimony from the petitioner, the court concluded that he was not objecting to the length of his sentence but that his “real complaint” was that he had been sent to Patuxent Institution, as the petitioner so stated in his testimony. The trial court found from this testimony that it was “only after the court ordered him examined by the Patuxent Institution that he wanted to contest the disposition of his case.”

In his application for leave to appeal, applicant contends that the court erred in its factual findings, and also erred when it refused to hear testimony of witnesses on his behalf to establish the “irregularities” surrounding his apprehension, arrest, interrogation and lineup identification so as to show that these irregularities induced his plea of guilty.

It is, of course, well settled that a plea of guilty may be entered under circumstances showing a voluntary desire on the part of the accused to do so, with an intelligent understanding of the nature of the offense to which he is pleading guilty and the possible consequences of such a plea. Wayne v. State, 4 Md. App. 424. It is equally well settled that when a person pleads guilty, the necessity of proving the offense is obviated, Campbell v. Warden, 240 Md. 729, so that in such a case no evidence need be introduced to prove guilt, Gopshes v. State, 1 Md. App. 396. It has been held, therefore, that a plea of guilty, freely and intelligently made, operates as a “conviction of the highest order” and constitutes a waiver of all non-jurisdictional defects, Treadway v. Warden, 243 Md. 680, including the defects inherent in an illegally elicited confession, McCoy v. Warden, 234 Md. 616, an illegal arrest, Simpson v. State, 234 Md. 618, and an unlawful search and seizure, Ogle v. Warden, 236 Md. 425. But where it is specifically contended in a petition filed under the Uniform Post Conviction Procedure Act that a guilty plea was not freely and intelligently entered (and there is no question under the Act either of statutory waiver or of a prior final adjudication), a full evidentiary hearing must, at least in some circumstances, he afforded to permit the petitioner to show, if he can, that his guilty plea was not voluntarily and intelligently entered. See Farrell v. Warden, 241 Md. 46; Branson v. Warden, 239 Md. 15; Cox v. Warden, 238 Md. 230.

In Cason v. Director, 236 Md. 344, the petitioner who had pleaded guilty at his trial contended in his petition under the Post Conviction Procedure Act that he was convicted on evidence seized as a result of an illegal search. The Court of Appeals found it unnecessary to inquire into the legality of the seizure of the evidence, as it concluded that there was no allegation that the plea of guilty was not knowingly and understandably made, or that the seizure of such evidence compelled or induced the petitioner to plead guilty. To like effect, see Ogle v. Warden, supra. It would thus appear by implication from Cason and Ogle that where, as here, a petitioner affirmatively alleges that he was induced to plead guilty by confrontation with illegally, seized evidence, an evidentiary hearing should be held (at least where there is no statutory waiver of the contention or prior adjudication thereof under Section 645A (b) and (c) of the Act) to permit the petitioner an opportunity to prove, as a matter of fact, that his plea was so improperly induced and, as such, was not freely and intelligently entered. While Cason and Ogle are limited on their face to instances where the guilty plea was allegedly impelled by confrontation with evidence seized in violation of the Fourth Amendment to the Federal Constitution (see Mapp v. Ohio, 367 U. S. 643), it may be argued that the principle underlying these cases extends to guilty pleas allegedly impelled or induced by confrontation with, or- knowledge of, any incriminating evidence unconstitutionally obtained, whether tangible or intangible, including involuntarily obtained confessions and lineup identifications which affront due process of law (see Stovall v. Denno, 388 U. S. 293). If such a view correctly states the applicable law under the Post Conviction Procedure Act, it would follow that at the evidentiary hearing the question of what mental processes compelled the petitioner to plead guilty — although almost entirely a subjective matter — would require full evidentiary exploration, together with other questions relating to the circumstances under which, the petitioner was made cognizant of the incriminating evidence (if he ever was), whether he understood its incriminatory nature, effect, and possible use, whether he knew that such evidence could be excluded at his trial upon proper objection, whether with knowledge of his.federal constitutional rights he nevertheless intentionally waived them (see Johnson v. Zerbst, 304 U. S. 458, and Jones v. Warden, 2 Md. App. 343), and whether he knowingly and intelligently failed to allege before trial, at trial, or on direct appeal, that the plea of guilty which he would enter was not free and voluntary, thus amounting to a waiver of the contention under the Act, unless there is a showing of special circumstances to excuse such failure (Section 645A (c)).

Whether in all such cases the force of Cason and Ogle is such as to require evidentiary hearings of such broad dimension and scope, we think that in any event the basic issue is not whether there exists evidence which was unconstitutionally secured and made known to the petitioner, but rather, even assuming such a fact, whether it was the inducing or compelling cause of the entry of the guilty plea. If it was not, then it cannot be successfully maintained that the guilty plea was, on that asserted ground, other than freely and intelligently made.

While in the present case the applicant sought a broader evidentiary hearing than was afforded by the court below, we think it plain from his own testimony that the disavowal of his guilty plea stemmed not from any lack of voluntariness when the plea was entered, but solely as an afterthought because his conviction resulted in his referral to Patuxent Institution ■— a facility which we judge he preferred to avoid. It may have been that the trial judge should have permitted the proffered testimony in evidence; moreover, we think he should have had before him the substance of the proceedings conducted when applicant entered his guilty plea. But, as heretofore indicated, we think the record before us, considered in light of the application for leave to appeal, compels the conclusion that applicant’s guilty plea was not involuntarily entered as a result of any confrontation with evidence secured in violation of his constitutional rights.

We think it not improbable that in deciding Cason and Ogle, the Court of Appeals considered the effect of the Supreme Court’s holding in Fahy v. Connecticut, 375 U. S. 85 — a state prosecution in which highly incriminating evidence had been illegally seized from the defendant who, with knowledge of such seizure, subsequently confessed his guilt to the crime. As the defendant there had not been afforded an opportunity at the trial to show, as he claimed, that his extrajudicial confession was induced by being confronted with the illegally seized evidence, the Supreme Court remanded the case for a factual determination on the question, noting in the course of its opinion that the “essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all,” citing Wong Sun v. United States, 371 U. S. 471; Nardone v. United States, 308 U. S. 338, and Silverthorne Lumber Company v. United States, 251 U. S. 385. But whereas Pahy involved a not guilty plea, followed by a trial to determine the guilt or innocence of the defendant, at which his extrajudicial confession was introduced to prove his guilt, (but without affording him an opportunity to show that it was involuntarily obtained by confrontation with illegally seized evidence) the present case involves a guilty plea, i.e., a judicial confession of guilt entered in open court, making unnecessary the introduction of any evidence to determine guilt or innocence. We think these differences are both substantial and fundamental and they cause us to entertain doubt that the constitutional principle enunciated in Pahy has any direct application to the facts of cases such as the present arising under the Post Conviction Procedure Act. In view of our disposition of the application for leave to appeal, however, we have no need to decide the question.

Application denied.

      . In a not dissimilar vein, the Supreme Court, on June 10, 1968, decided Harrison v. United States, 392 U. S. 219, a case involving the question of whether, on a retrial, the defendant’s original trial testimony, which incriminated him, and which was sought to be introduced at the retrial, “was the inadmissible fruit” of three unconstitutionally obtained confessions which had been erroneously introduced against him at the original trial. The court held, in effect, that if the defendant had been impelled to testify as a consequence of the improper admission of the illegal confessions, “the same principle that prohibits the use of confessions so procured also prohibits the use of any testimony impelled thereby” on the ground, as in Pahy, that the “essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.” The court specifically rejected the argument that after the confessions were introduced against the defendant, he had simply made a conscious tactical decision to seek acquittal by testifying in his own behalf. It concluded that the question “is not whether the petitioner made a knowing decision to testify, but why” — that if the defendant testified “in order to overcome the impact of confessions illegally obtained and hence improperly introduced, then his testimony was tainted by the same illegality that rendered the confessions themselves inadmissible.” The court then indicated that the question was one of fact — • “whether the petitioner’s trial testimony was in fact impelled by the prosecution’s wrongful use of such illegally obtained confessions.” On this question the court, in reversing the conviction, determined that the government had not demonstrated that such testimony was obtained “by means sufficiently distinguishable”' from the underlying illegality “to be purged of the primary taint,” citing Wong Sun v. United States, supra.

        . As an illegal arrest does not preclude trial and conviction for the offense, Hartley v. State, 4 Md. App. 450, and as an identification made at a pretrial confrontation held following an illegal arrest does not, for the reason that the arrest was illegal, render the identification evidence inadmissible, Tender v. State, 2 Md. App. 692, and as an extrajudicial confession given following an illegal arrest is not thereby per se inadmissible in state prosecutions, Boone v. State, 2 Md. App. 80, we hold as a matter of law that none of these reasons taken separately or collectively can ever constitute valid grounds upon which to show that the plea of guilty was not understandably and intelligently made.


author: Morton, J.,

text:
    JAMES STREETER, JR. v. STATE OF MARYLAND
    [No. 21,
    September Term, 1968.]

      Decided November 20, 1968.

    The cause was argued before Murphy, C.J., and Anderson, Morton, Orth, and Thompson, JJ.

      Thomas J. Aversa, Jr., (G. Denmead Le Viness on the brief) for appellant.

      Henry J. Frankel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and Hilary Capian, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

The appellant, James Streeter, Jr., was convicted in the Criminal Court of Baltimore by Judge James A. Perrott, in a non-jury tria.l, of disorderly conduct, resisting arrest and of being a rogue and vagabond. He was given consecutive sentences of thirty days, one year and two years, respectively. His Motion for judgment of Acquittal was granted to an indictment for murder.

The record indicates that the appellant was in a carry-out restaurant in Baltimore City about 1:50 A.M. on January 25, 1967. According to the assistant manager, he had consumed one sandwidi and had ordered another but was without funds to pay for it. Since closing time was 2 :00 A.M., the assistant manager asked him to leave and he refused. After several such requests went unheeded, he was told that unless he left, the police would be called. He refused to leave and, as an individual in the establishment left to get the police, the policeman on the beat walked in the door. The officer made several requests of the appellant to leave and instead of complying, he picked up a table knife and endeavored to slide it into his pocket. The officer promptly retrieved the knife, placed him under arrest and took him out of the shop. The assistant manager testified that he observed them traverse a city block during which time the officer had the appellant by his belt and the appellant was continuously struggling to break away.

Another witness testified that he observed the appellant being taken to the “call box”; that he was struggling to get away ; that when they reached the call box he noticed the officer “falling backward on the pavement.” He then noticed the appellant running down the street toward him and at the same time a passing taxi cab driver shouted, “Grab him,” which the witness promptly did and, with the aid of another individual, kept the appellant subdued until police arrived.

The cab driver testified that he observed the appellant and the officer at the call box; saw the officer collapse while making the call; and saw the appellant running away.

A police officer testified that he arrived at the call box in response to a radio call; found the arresting officer lying on the sidewalk and immediately called an ambulance. The officer was taken to a hospital where he was pronounced dead as a result of a heart attack which, according to a representative of the medical examiner’s office, was due to natural causes and unrelated to the events involving the arrest of the appellant. The officer searched the appellant and found two pairs of scissors in his coat pocket. Another officer testified that he found a table knife on the sidewalk under the arresting officer’s body.

The appellant, who admitted numerous prior convictions, testified that at the time of his arrest he “was drunk”; that he remembered being arrested in the shop; that he remembered being at the call box when the officer collapsed and “I panicked and didn’t know exactly what to do. I got scared; I didn’t know what to do but run.” He also testified that “each time I get in trouble I been drinking.” He did not recollect taking the table knife.

In this appeal, the appellant contends that the evidence was legally insufficient to support his convictions. He argues (1) that “he was not acting in a disorderly manner”; (2) that “he does not remember resisting” the arresting officer; (3) that the evidence failed to show that he had the knife concealed upon his person or was carrying it openly with intent to injure any person. In our opinion these arguments are without substance.

The appellant was convicted of violating Maryland Code, Art. 27, Sec. 123, which provides in part:

“Every person who shall be found drunk, or acting in a disorderly manner to the disturbance of the public peace * * * in any store during business hours, * * * shall be guilty of a misdemeanor * *

• The applicability of this statute was before this Court in Bacheller v. State, 3 Md. App. 626 and McIntyre v. State, 1 Md. App. 586. In each instance we adopted the language of the Court of Appeals in Drew v. State, 224 Md. 186, where Judge Hammond (now Chief Judge), speaking for the Court, said (at p. 192):

“The gist of the crime of disorderly conduct un- - der Sec. 123 of Art. 27, as it was in the cases of common law- predecessor crimes, is the doing or saying, or both, of that which offends, disturbs, incites, or tends to incite, a number of people gathered in the same area. 3 Underhill, Criminal Evidence, Sec. 850 (5th Ed.), adopts as one definition of the crime the statement that it is conduct ‘of such a nature as to affect the peace and quiet of persons who may witness the same and who may be disturbed or provoked to resentment thereby.’ Also, it has been held that failure to obey a policeman’s command to move on when not to do so may endanger the public peace, amounts to disorderly conduct.”

See also Cantwell v. Connecticut, 310 U. S. 308-309; 12 Am.Jur.2d, Breach of Peace, § 8.

Although the record does not reveal the exact number of people in the store at the time of the appellant’s refusal to leave, it is clear that the assistant manager, one employee and another individual were on the premises in addition to the police officer. The conduct of the appellant, in our opinion, offended, disturbed or, at least, “tended to incite” the individuals then on the premises, particularly since he was apparently insisting upon being served food, although without funds, and it was closing time and the shop could not be closed until he departed. His conduct could have precipitated a melee had the assistant manager not exercised good judgment by seeking the aid of a police officer rather than resorting to self help. The conduct and demeanor of the appellant did not abate when the officer arrived. In fact it became more aggravated by his attempt to purloin the table knife. Under these circumstances, we think it is clear that the appellant was “acting in a disorderly manner to the disturbance of the public peace” within the meaning of the statute as it has been judicially interpreted.

Having found the arrest to have been lawful, it is apparent from the facts set forth above that there was ample evidence to support the appellant’s conviction of resisting arrest. Carwell v. State, 2 Md. App. 45.

Likewise, there was legally sufficient evidence to support his conviction of violating Md. Code, Art. 27, Sec. 490, which provides in part as follows:

“If any person * * * shall have upon him any pistol, hanger, cutlass, bludgeon, or other offensive weapon, also at places and under circumstances from which may be presumed an intent feloniously to assault any person * * * such person shall be deemed a rogue and vagabond * * *.”

The trial judge in announcing his verdict of guilty on the rogue and vagabond count of the indictment stated:

“After having heard all of the evidence in this case, I am firmly convinced that you took that knife for one purpose and one purpose alone, that was to inflict injury upon someone.”

Under the facts and circumstances present in this case we agree with the reasoning of the lower court and we cannot say that the judgment was clearly erroneous. Md. Rule 1086. Shipley v. State, 243 Md. 262, 270.

Judgments affirmed.


text:
    DONALD WAYNE DUNCAN v. STATE OF MARYLAND
    [No. 83,
    September Term, 1968.]

      Decided November 20, 1968.

      The cause was argued before Murphy, C.J., and Anderson, Morton, Orth, and Thompson, JJ.

      Livingston W. Yourtee for appellant.

      Alfred J. O’Ferrall, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Julian B. Stevens, State’s Attorney for Anne Arundel County, and Ronald M. Naditch, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

The appellant and a co-defendant were jointly indicted for robbery and jointly tried in the Circuit Court for Anne Arundel County by the court without a jury. The appellant was found guilty of robbery (1st count) and malicious mischief proscribed by Md. Code, (1967 Repl. Vol.), Art. 27, § 111 (7th count) and a general sentence of imprisonment for a term of 7 years was imposed. On appeal from the judgment the appellant first contends that the evidence was not sufficient to sustain the conviction of malicious mischief.

The 7th count of the indictment alleged that the appellant “wilfully and maliciously did destroy, injure, deface and molest the personal property of Otto Von Schrader.” The evidence showed that the injury was to the car of Von Schrader, stolen by the appellant while he was robbing Von Schrader. The circumstances of the injury, as observed by both the' victim and a police officer, are not disputed. After robbing Von Schrader of $8 in currency and the keys to his car, the appellant, accompanied by the co-defendant, drove the car from a parking lot. He backed the car out of its parking space “at a high rate of speed, stopped short, went forward, struck a light car that was parked next to it” and drove away. The headlight on Von Schrader's car was broken. The car was pursued by the police who stopped it several blocks away and apprehended the appellant and the co-defendant. The appellant was behind the wheel.

Md. Code, supra, Art. 27, § 111 provides: “Any person who shall wilfully and maliciously destroy, injure, deface or molest any real or personal property of another shall be deemed guilty of a misdemeanor * * The elements of the offense under the statute are:

(1) as to the property: it may be real or personal property but must be that of another;
(2) as to the mischief: the property must be destroyed, injured, defaced or molested;
(3) as to the mens-rea: the mischief must be wilful and malicious.

In the instant case the evidence showed that the appellant was the criminal agent and, as to the corpus delicti, it showed that the property was the personal property of another and that the property was injured, defaced and molested. The only question is as to the mens-rea, whether the damage was by a wilful and malicious act.

Blackstone said that malicious mischief “is such as is done, not animo furandi, or with an intent of gaining by another’s loss * * * but either out of a spirit of wanton cruelty, or black and diabolical revenge.” 4B1. Comm. 243. Some cases, following this view, hold that malice as to this offense has a different meaning from that ordinarily used in the law of crimes and is used in the sense of actual ill-will or resentment toward the owner or possessor of the property. 2 Wharton’s Criminal Law, (1957) § 657, p. 456; Clark & Marshall, Law of Crimes (6th Ed.), § 12.43, p. 869. Perkins, Criminal Law (1957) ch. 4, § 7C, p. 285 finds this “quite illogical,” resulting “from a faulty analysis of the legal meaning of the word ‘malice.’ ” He states, p. 285:

“ ‘Malice’ has had its chief exposition in the homicide cases, and all the confusion at this point could have been avoided if due attention had been given to the results there reached. A homicide may be malicious without a specific intent to kill if it results from an act done in wanton and wilful disregard of a plain and strong likelihood that loss of life will result. On the other hand, an intentional homicide without justification or excuse is not malicious if committed under circumstances of recognized mitigation. And this application of ‘malice’ to the homicide cases is in no sense an unusual treatment of the word as it is used in the law. In other words, the ordinary legal concept of malice requires two ingredients, one positive and the other negative. On the positive side ‘malice’ requires an intent to cause the very harm that results or some harm of the same general nature, or an act done in wanton and wilful disregard of the plain and strong likelihood that some such harm will result. And on the negative side it requires the absence of any circumstánce of justification, excuse or recognized mitigation.”

We think that Maryland tends toward the view expressed in Perkins. In Rosenberg v. State, 164 Md. 473, 476 the Court, construing a statute then in effect providing that any person who shall “wilfully and maliciously * * * destroy * * * any fencing, * * * shall on conviction thereof, be adjudged guilty of a misdemeanor * * said the term “wilfully,” for the purposes of such an accusation, “is used to characterize an act done with deliberate intention for which there is no reasonable excuse,” and the word “maliciously” is “descriptive of a wrongful act committed deliberately and without legal justification.” This definition of malice is in substance the same as that used in connection with murder — “the intentional doing of a wrongful act to another without legal excuse or justification.” Chisley v. State. 202 Md. 87, 105. And we see no practical distinction between “wilful” and “malicious” as used in the statute proscribing malicious mischief, as malice “includes any wrongful act done wilfully or purposely.” Chisley v. State, supra, p. 105, citing Rosenberg v. State, supra. We think that the special element of mens-rea in malicious mischief, designated in the statute as “wilfully and maliciously,” requires either a specific intent to cause the destruction, injury, defacement or molestation of the property of another, or an act done in wanton and wilful disregard of the plain and strong likelihood of such harm, without any justification, excuse, or substantial mitigation. Stated in other words: the mens-rea requirement of malicious mischief is a property-endangering state of mind, without justification, excuse, or mitigation. Perkins, supra, p. 290.

The few cases in this jurisdiction on point, support this view. In Rosenberg v. State, supra, the Court found that in removing a post standing on another’s property, Rosenberg was asserting a property right which the owners of the ground on which the post was planted were contesting. Thus the mischief was done with justification or excuse or mitigation and did not constitute the criminal offense proscribed by statute. In Gibson v. State, 238 Md. 414, the parties involved were feuding over a roadway and Mr. and Mrs. Gibson twice cut a fence situated on property belonging to Strauss. The fence in no way impaired the use of the roadway nor did it touch or intrude on the Gibson property. Thus there was no justification or excuse or mitigation for the mischief and it did constitute the offense. But while these cases related to the mens-rea of the offense they are of little help in a determination of the instant case. In both Rosenberg and Gibson the decisions turned on justification, excuse or mitigation; there was no question but that the acts were done wilfully and purposely. On the other hand, in the instant case we have no difficulty in finding that there was no justification, excuse or mitigation, in the sense required, in the act causing the damage to the car, and the question is whether it was wilful and purposeful. The appellant argues, in effect, that the damage was caused accidentally and even if by his negligence, “regardless of whether he was stealing the car, borrowing it or using it without authority,” this is not sufficient to show the required mens-rea.

We do not think that the evidence before the lower court was sufficient to show that the appellant had a specific intent to damage the car; rather it appears that he took the car as a means of escape. But it is established that malice may be inferred from the circumstances. Chisley v. State, supra, p. 105; Wharton, supra, § 657, p. 458. The lower court said, “I think that by inference * * * malice was shown here.” As we have found that there was no justification, excuse, or mitigation in the act causing the damage to the car, the question is, therefore, whether such act was done in wanton and wilful disregard of the plain and strong likelihood of such damage. The cases precisely on point in other jurisdictions are few in number. Two are illustrative. In State v. Robinson, 20 N. C. 130 (1838) the defendants found a wagon standing in .the street and ran it through the street and down a hill, whereby it was damaged. The court found that this was not malicious mischief. But it based its decision on the rule that malicious mischief to be indictable “consists in the wilful' destruction of some article of personal property, from actual ill-will or resentment towards its owner or possessor,” p. 131.. We have rejected this rule. In State v. Davis, 88 S. C. 229 (1911) the lower court charged the jury as to malicious mischief: that “if the proof in this case satisfies you beyond a reasonable doubt that these defendants, on the occasion referred to, drove that automobile (taken without the consent of the owner) down that public road in such a furious manner, so regardless of the rights of the owner of it as not to know and not to care whether they smashed it up, and while so recklessly driving it was wrecked and broken up, the law says they are presumed as intending to smash it up, because that is the reasonable consequence of their act, and if you are satisfied beyond a reasonable doubt that these facts existed, then they are guilty of the crime of malicious mischief.” The South Carolina Supreme Court held that the charge was proper, saying that “malice is a term of art, implying wickedness and excluding a just cause or excuse. It is implied from an unlawful act wilfully done * * *. In an indictment for malicious mischief it is not necessary to show personal ill-will against the owner of the property, but malice as an ingredient of the offense may be inferred from the wilful doing of an unlawful act without just cause or excuse, and both wilfulness and malice may be inferred when the unlawful act is done in such a wanton and reckless spirit as to show a mind disposed to mischief.” 88 S. C. 238-239.

We do not think, in the instant case, that the evidence was sufficient to support an inference of malice. The evidence, with regard to the damage to the car, showed only that the appellant backed the car out of its space on the parking lot “at a high rate of speed, stopped short, went forward,” struck a car parked next to it and drove away. We cannot say that this evidence properly permitted the lower court to find that the appellant drove the car in such a reckless manner, so regardless of the rights of the owner as not to know and not to care whether he damaged it, so as to raise the inference that he intended to damage it as the reasonable consequence of his act. Even though his actions may have been negligent, this is not enough. We feel that the evidence here was not sufficient to show gross negligence or to support an inference that the act of the appellant was done in wanton and wilful disregard of the plain and strong likelihood of the damage which ensued. Thus the mens-rea requirement of the crime of malicious mischief proscribed by the statute was not met. Therefore the judgment of the lower court on the evidence was clearly erroneous and must be set aside as to the 7th count of the indictment. Md. Rules, 1086. As the general sentence imposed was within the maximum authorized for the crime of robbery of which the appellant was convicted under the 1st count, the sentence need not be disturbed. Burks v. State, 1 Md. App. 81; Jones v. State, 3 Md. App. 608.

The appellant also contends that the lower court erred in limiting cross-examination by him of a State’s witness relating to the condition of the victim, Von Schrader. On direct examination of a police officer called by the State, in answer to a question, “Can you tell us Mr. Von Schrader’s condition at the time you first observed him?” The witness replied, “I could see blood on Mr. Von Schrader’s face.” On cross-examination defense counsel asked, “And you observed the blood on his face, you said?” And the witness replied, “Yes, sir.” Counsel then asked, “Did you observe anything else unusual about Mr. Von Schrader’s condition?” Objection to the question was made and overruled and the witness answered, “No, sir, I did not.” Counsel asked, “Could you detect any odors?” Objection was made and sustained and the witness was excused. Ordinarily the scope of cross-examination is a matter within the sound discretion of the trial judge and will not be disturbed on appeal unless it appears that some injustice has been done. Barger v. State, 2 Md. App. 565, Davis and Peterson v. State, 1 Md. App. 581. We see no injustice or prejudice here. It is true that where a general subject has been entered upon in the examination in chief, the cross-examining counsel may ask any relevant question on the general subject. Williams v. Graff, 194 Md. 516, 522, quoted in Shupe v. State, 238 Md. 307, 311. But here the trial judge allowed a question as to the condition of Von Schrader and the witness replied that he observed nothing unusual about Von Schrader’s condition except the blood on his face. The appellant now says that by excluding the question about odors, he was “hampered” from showing “that Von Schrader ma\ have been drunk, thus impeaching his testimony and giving greater credibility to the appellant’s own testimony.” But the relevance of the excluded question was not apparent, it made no reference to what kind of “odors” or that it was the odor of alcohol to which the inquiry was directed. Nor did counsel attempt to pursue the matter; he could have elicited testimony as to the intoxication of Von Schrader vel non, had he so desired, by questions properly framed. We find no error in the exclusion of the challenged question.

Judgment affirmed on the robbery conviction (1st count); judgment reversed on the malicious mischief conviction (7th count) and remanded for a new trial thereon.

      . James Joseph Barringer was convicted of robbery and sentenced to imprisonment for a term of 5 years, subsequently reduced to 4 years by order of the court.

      . The crime is so designated by writers in early times and by-writers today. Such phrases as malicious destruction of property, malicious trespass, malicious injury and malicious damage are merely additional labels used at times to indicate the same offense.

      . The appellant does not contend that the evidence was not sufficient to sustain the conviction of robbery.

      . The appellant testified that he was not “aware” he struck another car.

      . Malicious mischief was a misdemeanor according to the common law of England although there is some confusioti as to this because Blackstone said that it was “only a trespass at common law,” 4B.1. Comm. 243, and because there were few English precedents of indictments for such an offense at common law. But before the word “misdemeanor” became well established the old writers tended to use the word “trespass” to indicate an offense below the grade of felony, as Blackstone did in the phrase “treason, felony or trespass” in 4B1. Comm. 130. And from an early day the offense was punished as a felony or misdemeanor by statutes in England, from Westminister I., 13 Edw. 1, § 46 (1275) to 24 and 25 Viet. c. 97 (1861), covering injury to many specific types of property and to property generally. There are American decisions holding that it was a misdemeanor at common law. See e. g. State v. Watts, 48 Ark. 56 (1886); State v. Simpson, 9 N. C. 460 (1823).

      . “(Simple) negligence, whether in commission or omission, is not enough to render a man guilty of a crime of which a specific intent is an essential element, as in the case of * * * malicious mischief * * *. Criminal liability cannot be supported by mere negligence, it must reach the level of recklessness, wantoness and be of such character manifesting an utter disregard of the safety of others.” Clark and Marshall, supra, § 5.09, pp. 264-265. So gross negligence — a wanton and reckless disregard for human life — may support an inference of malice and place homicide in the category of murder and a wanton and reckless act may be sufficient for guilt in other offenses having malice as an essential element. That a person causing the death of another as the result of driving an automobile or other vehicle in a grossly negligent manner is guilty only of manslaughter is not because malice cannot be inferred but because the statute designates the offense as manslaughter by automobile or other vehicle. Md. Code, Art. 27, § 388. The statute creates a separate statutory misdemeanor. Connor v. State, 225 Md. 543.


text:
    MARVA WILLIAMS, REBECCA EVELYN McCLELLAND, and MARY LOUISE McCLELLAND v. STATE OF MARYLAND
    [No. 89,
    September Term, 1968.]

      Decided November 20, 1968.

      The cause was argued before Murphy, C.J., and Anderson, Morton, Orth, and Thompson, JJ.

      Tucker R. Dewing for appellants.

      James L■ Bundy, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Richard J. Kinlein, State’s Attorney for Howwd County, Julian B. Stevens, Jr., State’s Attorney for Anne Arundel County, and Ronald M. Naditch, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

Each of the appellants was found guilty by a jury in the Circuit Court for Howard County of aiding and abetting in the escape of Harry LaRue McClelland, who was undergoing lawful imprisonment in Patuxent Institution, and with conspiring to aid and abet his escape.' Each appellant was sentenced to the custody of the Commissioner of Correction for an indeterminate period not to exceed 3 years on each conviction, the sentences to run concurrently. On appeal from the judgments the sole contention is that the evidence was not legally sufficient to sustain the convictions.

APPELLATE REVIEW OF THE SUFFICIENCY OF THE EVIDENCE

We think it advisable to discuss the authority and function of this Court in its review of the sufficiency of the evidence in a criminal case. The right of a person charged by this State with a criminal offense to be tried by a jury is guaranteed by Art. 5, Declaration of Rights, Constitution of Maryland and Amendment VI, Constitution of the United States. He may, however, waive the right and elect to be tried by the court. Md. Rules, 741. Art. NV, § 5, Constitution of Maryland, prior to the amendment effective 1 December 1950, provided: “In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of Fact.” As a corollary to this provision, in the absence of other provisions by statute, it became the settled law of Maryland that the Court of Appeals would not pass on the legal sufficiency of evidence to convict in a criminal case where the case was tried by a jury and, by analogy to the constitutional provision, it was repeatedly held by the Court of Appeals that it would not pass on the legal sufficiency of the evidence to convict where the case was tried by the court sitting as a jury. Abbott v. State, 188 Md. 310, 313. See Jones v. State, 188 Md. 263, 273; League v. State, 36 Md. 257. Compare Winkler v. State, 194 Md. 1. The first change with respect to appellate review of the sufficiency of the evidence in criminal cases came with the adoption of the General Rules of Practice and Procedure by the Court of Appeals, effective 1 January 1950. Rule 7(c) of Part Four, relating to Criminal Rules, contained, in substance, the provisions of Rule 1086, Maryland Rules of Procedure, now in effect, and applicable to this Court. Rule 1086 provides:

“When a case has been tried by the lower court without a jury, this Court will review the case upon both the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.”

So it was not until 1 January 1950 that there could be an appellate review to determine the sufficiency of the evidence to sustain a conviction in a criminal case and then such review was limited to those cases tried by the court without a jury. However, Art. XV, § 5 of the Constitution of Maryland was amended, effective 1 December 1950 by adding to the existing provisions the clause “except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.” The amendment was implemented by statute, now Md. Code, (1967 Repl. Vol.), Art. 27, § 593, and rule of Court, now Md. Rules, 755. Art. 27, § 593 provides:

“In the trial of all criminal cases, the jury shall be the judges of law, as well as of fact, except that at the conclusion of the evidence for the State a motion for judgment of acquittal on one or more counts, or on one or more degrees of an offense, may be made by an accused on the ground that the evidence is insufficient in law to justify his conviction as to any such count or degree. If the motion is denied, he may offer evidence on his own behalf without having reserved the right to do so, but by so doing, he withdraws his motion. The motion may be made at the close of all the evidence whether or not such motion was made at the conclusion of the evidence for the State. If the motion is denied the defendant may have a review of such ruling on appeal.”

Rule 755b provides to like effect as to the making of a motion for judgment of acquittal and Rule 755c provides that if the lower court on such motion or on its own motion determines that a judgment of acquittal should be granted, it shall direct the clerk to enter it. If the case is tried before a jury it shall not be necessary for the jury to render a verdict.

It is clear therefore that under the present status of the law there may be an appellate review of the sufficiency of the evidence to sustain the conviction in a criminal case. But the issue comes before us in a case tried by the lower court sitting as a jury in a different posture than when the case is tried by a jury. In a non-jury case Rule 1086 specifically provides that we shall review the case upon the evidence (as well as the law) and we must determine whether the lower court was clearly wrong on the evidence in finding a verdict of guilty. In a jury case if the lower court finds upon motion for judgment of acquittal that the evidence is sufficient in law to justify a conviction, it denies the motion, and permits the evidence to go to the jury. On appeal we determine whether the denial of the motion was proper. It is because of this difference in the posture of the issue of the sufficiency of the evidence that we may entertain the issue on appeal in a jury case only upon the denial by the lower court of a motion for judgment of acquittal but we must entertain the issue in a non-jury case when presented on appeal even in the absence of a motion for judgment of acquittal below. See Lotharp v. State, 231 Md. 239; Nicholson v. State, 229 Md. 123; Elliott v. State, 215 Md. 152; Jason v. State, 1 Md. App. 136.

The question arises as to what test is to be applied on appeal in determining- the sufficiency of the evidence (1) to sustain a conviction in a non-jury case, and (2) to justify its submission to the jury in a jury case. The first occasion the Court of Appeals had to apply the rule [then Criminal Rule 7(c)] pertaining to a non-jury case was in Lambert v. State, 196 Md. 57. The Court said, page 68:

“That rule was adopted for the purpose of preventing a possible miscarriage of justice by permitting the determination of one judge to take away the life or liberty of an accused without a review by any other tribunal. It was not intended, and will not be construed, to permit us to reverse judgments merely because our conclusion on the record is different from that of the trial judge. It is only intended to prevent manifest error.”

The rationale of the rule was again so stated in Edwards v. State, 198 Md. 132, 151. In the Memorandum on Motion for Reargument in that case the Court discussed the matter at length, noting that it was the first time it was suggested that the provision that “the verdict of the trial court shall not be set aside on the evidence, unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses” means any less than it says. It answered counsel’s question how the Court of Appeals could ever say that the trial court is clearly wrong by stating, at page 159:

“This question can only be answered as and when it is presented, case by case. If we recognize the difference between the roles of triers of facts and appellate courts, and the terms of Rule 7, it is expected that such cases will be rare * * *.”

By a long line of cases since Lambert v. State, supra, it has been firmly established that the test to be applied by the Court of Appeals and this Court in reaching a determination of the sufficiency of the evidence in a non-jury case is whether the evidence either shows directly or supports a rational inference of the facts to be proved, from which the lower court could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged.

Shelton v. State, 198 Md. 405 appears to be the first case decided by the Court of Appeals in which Art. XV, § 5 of the Maryland Constitution as amended was applicable. The Court said, at p. 412 that it would not reverse the judgment of the lower court “if there is any proper evidence before the jury oil which to sustain a conviction,” and held that the evidence in that case “was sufficient to warrant its submission to the jury.” The test to be applied by the Court of Appeals and this Court in determining whether the case or a particular issue was properly submitted to the jury has been stated a number of times as whether there was any relevant evidence adduced at the trial which would properly sustain a conviction.

Although the manner in which the question of the sufficiency of the evidence comes before us when a case is tried by the lower court without a jury is different than when a case is tried below by a jury, we see no material difference in the tests applied in determining the question. It is clear that in each instance the weight of the evidence and the credibility of the witnesses are matters for the trier of facts. Shelton v. State, supra, at p. 412 and Graef v. State, 1 Md. App. 161 (jury cases); Weaver v. State, 226 Md. 431 and Dunlap v. State, 1 Md. App. 444 (non-jury cases). In order to meet the test of legal sufficiency in any criminal case the evidence must show directly the fact to be proved or support a. rational inference of the fact. The fact must be shown or the inference supported beyond a reasonable doubt or to a moral certainty. Shelton v. State, supra, at pp. 411-412. And while the clearly erroneous rule is not specifically applicable to jury cases, the Court of Appeals said in Royal v. State, 236 Md. 443, 448:

“[W]e have consistently held that in order to overturn a judgment entered on the verdict of a jury for insufficiency of the evidence it is necessary to show that there was no legally sufficient evidence or inferences drawable therefrom on which the jury could find a defendant guilty beyond a reasonable doubt.” See Coates v. State, 232 Md. 72; Wright v. State, 222 Md. 242.

Once the question of the sufficiency of the evidence is properly before us, we believe that the criteria used to determine the question is the same, be the verdict rendered by the court or a jury. Whether the test applicable to jury cases is stated in the affirmative — the judgment will be affirmed if there is any relevant evidence before the jury to sustain a conviction — or in the negative — to overturn a judgment there must be no legally sufficient evidence on which the defendant could be found guilty beyond a reasonable doubt — it is inherent that to be sufficient in law to justify the conviction within the intent of Art. 27, § 593 the admissible evidence adduced must show directly or support a rational inference of the facts to be proved, from which the jury could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged. If it does, there is “relevant evidence” and if it does not there is “no legally sufficient evidence.” In other words we do not believe that evidence can be sufficient to permit its submission to the jury unless it is sufficient for the jury to find the defendant guilty beyond a reasonable doubt. And if the appellate review be considered more limited or the test with respect to the sufficiency of the evidence be construed as less demanding to sustain the conviction with regard to a jury trial than with regard to a court trial, serious question might arise as to a violation of the defendant’s right to a trial by jury. We feel that the apparent difference in the stating of the two tests is one of semantics and not substance. When an accused elects to be tried before the court without a jury, the court is substituted for the jury and has the same function in passing upon the guilt of the accused. Smith v. State, 182 Md. 176, 189; Berger v. State, 179 Md. 410, 417; League v. State, supra, 265. We think that whether the question comes before us as a contention that the trial court was clearly wrong in reaching a verdict of guilty on the evidence or as a contention that the evidence was insufficient in law so as to preclude it from being submitted to the jury, the test is 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. If there was such evidence, the lower court would neither be clearly erroneous, in a trial without a jury, in finding a verdict of guilty, nor in error, in a jury trial, in denying a motion for judgment of acquittal. And if there was no such evidence, the lower court would be clearly erroneous, in a trial without a jury, in finding a verdict of guilty, and in error, in a jury trial, in denying a motion for judgment of acquittal. Whether the lower court was clearly erroneous in its judgment on the evidence in a non-jury case or erred in allowing the evidence to go to the jury in a jury case, we would be obliged to set aside the judgment when the question was properly before us.

THE SUFFICIENCY OP THE EVIDENCE IN THE INSTANT CASE

A summary of the evidence in the instant case is as follows. It is not disputed that Harry McClelland, the son of appellant Rebecca Evelyn McClelland, the brother of appellant Marva Williams and the husband of appellant Mary Louise McClelland, was lawfully confined in Patuxent Institution. On 17 May 1967 he was brought to the courthouse in Annapolis by two correctional officers for trial on a charge that he had escaped from the Maryland House of Correction in 1964. When they arrived at the courthouse it was discovered that Malcom Christensen, also confined at Patuxent, whom McClelland desired as a witness, was not present. McClelland was taken to the county detention center and the officers returned to the Institution for Christensen, arriving back with him about 1:00 P.M. and on the way picking up McClelland at the detention center. McClelland and Christensen were placed in the “bull pen,” a small room “rather antiquated looking” with a little vestibule on the inside. “And it had a small window in the door with a wire screen over it, and it isn’t possible to pass anything from the vestibule into the bull pen itself.” That morning when McClelland was brought to the courthouse the appellants were there and he wanted to speak to them. He was not permitted to do so at that time because the Sheriff, in whose custody he had been placed, was busy. McClelland “raised quite a disturbance because he was very anxious to talk to them.” When he and Christensen were placed in the bull pen, however, the Deputy Sheriff allowed the appellants to talk to him through the screened window in the bull pen door. They conversed about 10-15 minutes. McClelland and Christensen were then taken to the courtroom by the correctional officers. No one else had contact with either McClelland or Christensen from the time they left the bull pen until they arrived in the courtroom. The trial started at 1:45 P.M. and concluded at 3:45 P.M. One of the correctional officers was seated on a bench in the courtroom with the appellants. Rebecca McClelland remained in the courtroom during the entire trial but Marva Williams and Alary Louise McClelland left about 5 minutes after the trial began. After the trial was over, the officers handcuffed both McClelland and Christensen immediately outside 1hc courtroom, took them back to the bull pen, put a waist chain and a “connector chain” on them, hooking the two men together, and took them out to the automobile to convey them back to Patuxent. A classifications officer from the Maryland House of Correction, subpoenaed as a witness at the trial, was also present, as the correctional officers were to drive him to the House of Correction. There was no personal contact with the prisoners by anyone other than the officers from the time they left the courtroom until they reached the automobile, a 1965 Plymouth Fury parked at the side entrance to the Court House “as you enter the parking lot.” The three officers sat in the front and the prisoners in the back. As they drove on State route 175 in the vicinity of Crownsville State Hospital, the prisoners yelled “out real loud,” and one said, “Put your hands behind your head and keep driving straight ahead as if nothing happened.” Frank J. Zemanick, one of the correctional officers, turned around and “Christensen had in his hands a .32 automatic pointing directly at me.” The officers did as directed; each passenger put his hands behind his head, the driver drove as if nothing happened. Zemanick was ordered to give the prisoners the keys to the shackles. He said, “Supposing I don’t?” and received the reply, “We’ll blow your damned head off.” Thereafter the prisoners took possession of the car and escaped. There was testimony that before prisoners leave the Institution “They’re required to strip completely to the skin. They’re given a change of clothing. Prior to being shackled on a return trip from the Court House they’re given a routine shakedown, pat, so to speak.” The prisoners were given this routine shakedown as they left the Court House. They were “patted down” around the waist and legs. On cross-examination of Zemanick it was developed that the two appellants who had left the courtroom were observed in the corridor near the courtroom during a recess of the trial. The prisoners went to the men’s room during a recess accompanied by the correctional officers and used the urinal. They did not enter one of the enclosed cubicles. McClelland left first with Zemanick because the bailiff said the trial was about to resume; Christensen remained in the men’s room with the other officer. There was also conversation between McClelland and the appellants in the hall after the trial but “just the normal things” like goodbye. The automobile in which the prisoners were placed after the trial was not thoroughly searched immediately before the prisoners entered it. The seats were not removed, nor did the officers look under or alongside of the seats. The car was unlocked while it was parked, the usual procedure at Annapolis because “the parking facilities are terrible” and at times there is a trustee “to jockey the cars around in order to get all the cars in there.”

Willie Foote, retired, testified that about 9:45 A.M. on 17 May he was standing at the corner of Cathedral and West Streets when two women, whom he identified at the trial as Mary Louise McClelland and a Bernadette McClelland, came up and asked him where they could buy bullets. He told them “There’s a place right there, Henry B. Miles.” Mary Louise McClelland said, “I been there but they didn’t have any.” He told her, “Well go to the pawn shop. They got them.” The pawn shop was right across the street. The women left and shortly afterwards came back. He asked Mary Louise McClelland if she got what she went after and she told him she had. He said, “What did you get” and she said, “Bullets.” He continued: “And they went down the street running, see, right down West Street to the circle * * * towards the Court House” about a block and a half away. He saw them again the same day about 12:10 P.M. Pie was on the same corner and they came out of Calvert Street. “And I beckoned to ’em, I said, ‘Come here’ and they came over to me. And I said to 'em, I said, ‘You didn’t kill anybody, did you? Did you kill your boy friend or kill your husband?’ And they laughed and went away * * * on down to West Street to the circle * * * towards the Court House.” On this occasion he also asked where their home was and he thought it was Mary Louise McClelland who said that it was Baltimore. “And I said to her, I says, ‘Why you come down here to buy bullets ?’ She said, ‘1 m getting them for my brother.’ ” About an hour later he saw them again. They went into the South Street side of the Health Department building and he entered on the Cathedral Street side. He had a conversation about them with a Mrs. Bea Powell. He told Mrs. Powell, “I don’t know what these girls up to, but * * * you keep your eye on them.” He saw the women leave the building and go in the side entrance of the Court House.

Mrs. Beatrice Powell testified that she met Willie P'oote about 1:30 P.M. on 17 May in the Health Department building. Based on information she received from him she walked out the door with him to the corner of South and Cathedral Streets and saw two women walk toward Franklin Street. About 1:50 P.M. she went out to put money in a parking meter and saw the same women sitting in the right hand rear seat of a white car with a State license tag. At the trial she was shown a photograph of the car in which the prisoners were transported to and from the Court House and she identified it as the car in which she saw the women sitting. “They were not sitting as passengers would be ordinarily sitting in a car. They were both sort of on the right hand side of the car, in the rear of the car * * * It seemed like they were sort of down fooling around under the floor or something.” One of them said, “Here comes a nurse,” and they got out and shut the door. Mrs. Powell put money in the parking meter and turned around to see where the women had gone. “They * * * seemed to be watching me.” She walked to the Court House parking lot attendant and asked him what the two women were doing in the car. She saw them again about 2:45 P.M. when she went to the Court House to get a newspaper. They passed by the paper stand. About 3 :45 P.M. she was at her desk in the Health Department building and looking out a window facing the Court House door she saw two handcuffed prisoners with three guards. They got in the same car she had seen the women in, the prisoners in the back and the guards in the front. She made an in-court identification of Mary Louise McClelland as one of the women she saw but was not positive as to the identity of the other woman.

Sam Snyder, a merchant operating the Economy Supply at 25 West Street, about a half block from Cathedral Street, testified that about 1:00 P.M. on 17 May three women came in his place of business. One stayed near the door and the other two went towards the back of the store and asked him if he had any bullets for sale. He identified them as Rebecca McClelland, Mary Louise McClelland and Marva Williams. Rebecca Mc-Clelland asked for the bullets. Mary Louise McClelland was near her and Marva Williams was by the door. He told them he had no bullets. On cross-examination he said it was .32 caliber bullets Rebecca McClelland asked for.

Elerk Rosenbloom, owner and operator of People’s Loan Office, 67 West Street, one store away from West and Cathedral Streets testified that he was a licensed dealer of firearms and bullets. On 17 May two women came in his store in the afternoon — “it was after lunch sometime” — and asked for six bullets for a .32 caliber automatic. He told them they could buy eight for a dollar and they bought eight bullets. “It was two colored women * * * I would say in their thirties.”

Sergeant Robert Flannery of the Anne Arundel Police Department testified that a .32 caliber weapon was “later recovered from one of the prisoners in Pennsylvania.” A line-up was conducted at which Sam Snyder positively identified Mary Louise McClelland and “a possible * * * on Marva Williams;” Beatrice Powell positively identified Mary Louise McClelland and Marva Williams; Willie Foote positively identified Mary Louise McClelland.

Harry M. McClelland and Christensen testified in behalf of the appellants. McClelland said he knew about a month and a half in advance that his trial had been set for 17 May; he asked for a speedy trial in Annapolis for the purpose of trying to escape. “I was planning on going just by strong-arming, if I could, the guards that * * * took me.” When Christensen was sent to Patuxent “we constructed a plan to escape together.” Christensen said he could get a weapon. So he had Christensen summoned as a witness. By a pre-arranged plan, the gun was left in the waste basket in the men’s room. Christensen got it from the basket when McClelland diverted the attention of the guards. Christensen had the gun on his person from then on. At the time of the escape Christensen got the gun “by reaching down towards his leg.” He denied that the appellants knew anything about the plan to escape or about the gun.

Christensen admitted in his direct testimony to an extensive criminal record starting with a conviction for armed robbery in 1948 and ending with a sentence of 97 years received in 1967 for convictions of escape from the Maryland Penitentiary and other charges relating thereto. Between 1948 and 1967 he had been convicted of armed robbery at least four times and had been convicted of other crimes including an escape from a prison in California. He said that when he learned of the date of Mc-Clelland’s trial “I automatically then sent out a letter to make arrangements for the escape * * * to parties in Baltimore.” The letter was sent front Patuxent but not through the regular channels — it was “kited out the back door * * * I paid an officer five dollars to take it out * * * Basically the letter stated the time and the date and where I was going to Court and how the Court was set up and where the person was to leave the gun and what type of gun I wanted * * * The instructions was to leave the gun in the men’s room — the men’s bathroom is right next to the courtroom — and to leave the gun in the trash receptacle in the bathroom.” He asked for a .32 automatic because its compact and small. When he and McClelland were taken to the men’s room he got the gun from the trash receptacle. He was going to escape right there but there were too many people in the hall. He put the gun into his belt under his shirt. In the Court Room he removed the gun from his belt and put it into his sock; during an exchange between Mc-Clelland, his attorney and the judge “everyone was watching the Judge. When they watched the Judge I went south with the gun.” He had taken two pieces of elastic and “made like garters to fit tight around the leg * * * If I had to put the gun there * * * it would hold it.” At the time of the escape he took the gun from his sock. He said he saw the man who left the gun for him on 17 May in the Court House but refused to give his name or otherwise to identify him. On cross-examination he claimed he was searched only when he left Patuxent and was not searched before he got into the automobile after the trial.

Each of the appellants testified. With regard to 17 May they denied speaking to Willie Foote, denied purchasing or attempting to purchase bullets from any store in Annapolis, denied being absent from the Court Room during the trial except for a few minutes on two occasions, denied being in the automobile used to transport the prisoners and denied having any knowledge of the gun or the escape plans.

Upon the motions for judgment of acquittal made at the close of all the evidence it was the duty of the lower court to determine whether the evidence was legally sufficient to permit its submission to the jury. It would be legally sufficient if it showed directly or supported a rational inference of the facts to be proved from which the jury could fairly be convinced beyond a reasonable doubt of the appellant’s guilt of the offenses charged. The facts to be proved were, first, that Harry McClelland had committed an escape proscribed by Md. Code, Art. 27, § 139 and, second, that the appellants had aided or assisted in that escape, also proscribed by the statute, and conspired to so aid and assist, an offense under the common law. It is clear that the evidence showed that Harry McClelland committed an escape within the purview of § 139, Fabian v. State, 3 Md. App. 270, and the appellants do not contend otherwise. In the exercise of our function on review there remains only our determination whether the lower court properly found that the evidence and rational inferences therefrom were legally sufficient for the jury to be fairly convinced beyond a reasonable doubt that the appellants aided or abetted the escape and conspired to so aid and abet. In our determination we recognize that the lower court was guided by established rules in arriving at its finding. That is the weight of the evidence and the credibility of the witnesses were matters for the jury. Shelton v. State, supra; Graef v. State, supra. The jury was under no obligation to believe Harry McClelland’s or Christensen’s version of how the gun was obtained nor the denials of the appellants. Therefore, if other evidence was legally sufficient to sustain the convictions, the motions were properly denied. We think there was such evidence. It is not disputed that the appellants were in Annapolis on the day of the escape. There was evidence that a .32 caliber automatic was the weapon used to effect the escape; that Mary Louise McClelland had inquired where bullets could be purchased; that Rebecca McClelland, in the presence of Mary Louise McClelland and Marva Williams, had attempted to buy .32 caliber bullets; that “two colored women” had bought eight bullets for a .32 caliber automatic; that Mary Louise McClelland and another woman were sitting in the car in which the prisoners were later transported and were in the rear seat where the prisoners were placed; that they were “sort of down fooling around under the floor or something;” that the prisoners were thoroughly searched before they left Patuxent; that they were continually in the presence of one or more of the guards with minimal opportunity for physical contact with any other person; that they were searched immediately before they were placed in the automobile after the trial; that the automobile was not then searched; that earlier that day the appellants had a 10 or 15 minute conversation with Harry McClelland; that the appellants were closely related by blood or marriage to Harry McClelland. We think that the evidence was sufficient to support a rational inference from which the jury could be fairly convinced beyond a reasonable doubt that the appellants aided and abetted the escape by the buying of bullets for the weapon and the placing of the weapon in the automobile and that they conspired together so to do. And even if the evidence be considered as “solely circumstantial” we feel that the circumstances, taken together are inconsistent with, or such as to exclude, every reasonable hypothesis or theory of innocence. See Nichols v. State, 5 Md. App. 340. Therefore the lower court did not err in denying the motions for judgment of acquittal.

Judgments affirmed: appellant Williams to pay one-third of the costs.

      . The right to an impartial jury guaranteed by Amendment VI to the Constitution of the United States was made applicable to

      . The history of the authority of an accused to elect to be tried by the court sitting as a jury may be traced through c. 57, § 19, Acts 1793; ch. 144, § 2, Acts 1809; ch. 399, § 17, Acts 1957 (repealed by ch. 588, § 3, Acts 1963); Rawlings v. State, 2 Md. 201; Rose v. State, 177 Md. 577. See Journigan v. State, 223 Md. 405, 409, note 3.

      . For a history of this section see Slansky v. State, 192 Md. 94.

      . The Reporter’s Notes on Criminal Rule 7 stated:
      “This proposed rule is a complete departure from existing law that criminal trials by the court without a jury are subjected to the same rules of procedure as those with a jury, including appealability.”
      In the Memorandum on Motion for Reargument in Edwards v. State, 198 Md. 132 at 157, the Court of Appeals characterized Rule 7 as “ * * * a complete departure from the pre-existing law which permitted no appellate review of facts.”

      . Rule 1086 is substantially the same as Rule 886a, applicable to appeals to the Court of Appeals.

      . But Criminal Rule 6(b) then adopted permitted the accused to request an advisory instruction that the evidence was insufficient to justify his conviction and it was the duty of the trial court, when requested, to give the jury an advisory instruction whether or not there was evidence legally sufficient to sustain a conviction. The giving or refusal of such an instruction was reviewable by the Court of Appeals. Wright v. State, 198 Md. 163, 170.

      . The amendment was proposed by the Legislature in 1949 (ch. 407 Acts 1949), ratified 7 November 1950 and became effective upon the Governor’s proclamation on 1 December 1950.

      . The development of the present status of the law under the constitutional provision as amended may be traced through the statutes enacted and rules adopted from time to time. See ch. 596, § 655A, Acts 1949; ch. 588, § 6, Acts 1963; ch. 213, Acts 1967; Criminal Rule 5A; Md. Rules, 738 (revised and renumbered as Md. Rules, 755). The changes were in effect procedural — from a request for advisory instructions that the evidence was insufficient prior to the amendment (see note 6 herein) to a motion for instruction or directed verdict based on the insufficiency of the evidence to a motion for judgment of acquittal in the place of such motions. See Giles v. State, 229 Md. 370, 383-386.

      . The motion may be made on one or more counts or one or more degrees of the offense at the close of evidence offered by the State or at the close of all the evidence. Such motion made at the close of evidence offered by the State is withdrawn if the accused thereafter offers evidence. Md. Rule 755b.

      . Of course, a motion for judgment of acquittal may be made in a non-jury case. If granted the accused is acquitted. If denied and the accused is convicted, the review required under Rule 1086 necessarily includes the review under the denial of the motion. But if the evidence be found sufficient to sustain the conviction, it follows that the denial of the motion was proper. See Diggins v. State, 198 Md. 504, 506 and Gray v. State, 4 Md. App. 175, 179. In Diggins the Court indicated that in non-jury cases the review under what is now Rule 1086 “may perhaps, in practice”, render what is now Rule 755, superfluous. In Gray, a non-jury case, we said that “the appellant’s urging that the lower court erred in not granting his renewed motion for Judgment of Acquittal at the close of the entire case is redundant and merges with his second contention that the evidence was not sufficient to sustain the conviction.”

      . Gibson v. State, 238 Md. 414 and Roeder v. State, 4 Md. App. 705 are illustrative of the cases so holding.

      . Clarke v. State, 238 Md. 11 and Plumley v. State, 4 Md. App. 671 are illustrative of the cases so holding.

      . In Brooks v. State, 3 Md. App. 485, a jury case, we said at 511: “In reviewing the lower court’s denial oí a Motion for Judgment of Acquittal, made at the conclusion oí the case, the review becomes a determination of the sufficiency of the evidence.” We found in that case that “there was legally sufficient evidence from which the jury could be reasonably convinced beyond a reasonable doubt of the appellant’s guilt.”

      . We note that in Diggins v. State, supra, the Court referred to “the full review upon the evidence” under Rule 7c (now Rule 1086) and “the limited review” under Rule 7b (now Rule 755) relating to motions for judgment of acquittal. However, we cannot conceive of a case where, on the same evidence, we could properly hold, if a jury were the trier of fact, that the evidence was sufficient to permit its submission to the jury, but, if the court were the trier of fact, that the evidence was not sufficient to sustain the conviction.

      . Harry McClelland testified for the defense. He admitted to the following convictions and sentences: aggravated assault in 1953 — 3 years; grand larceny in 1956 — 2 years; parole violation in 1959 — 9 months; larceny and receiving in 1960 — 11}4 to 23 months; larceny in 1961 — 2 years; parole violation in 1962 — 2 years; arrtied robbery in 1963 — 5 years;' armed robbery in 1965 — 30 years; riot in the Maryland Penitentiary in 1967 — 10 years; escape from the House of Correction in 1964 for which he was tried on 17 May 1967 — 5 years. He said he had “somewhere in the neighborhood of 73, 74” years yet to serve.

      . The record shows Marva Williams to be 26 years old, Mary Louise McClelland 33 years old and Rebecca McClelland 53 years old.

      . The 1st count of the indictment charged that the appellants did aid and abet the escape; the Snd count charged that they were accessories thereto; the 3rd count charged conspiracy to aid and abet. The State abandoned the Snd count and the case went to the jury on the 1st and 3rd counts.

      . At common law the appellants may have been guilty of the crime ordinarily called “rescue of a felon” or of being accessories before the fact to the crime of escape. See Fabian v. State, 3 Md. App. 270; Agresti v. State, 2 Md. App. 278. But Md. Code, Art. 27, § 139 created the statutory crime of aiding or assisting an escape. It was made a felony by the Acts of 1966, ch. 628, applicable to crimes committed on and after 1 June 1966. Therefore the appellants were principals in that crime. There is no practical distinction in Maryland between principals in the first and second degree.

      . The gist of a conspiracy is the entering into of the illegal scheme or design and once this occurs, the crime is complete without the doing of an overt act. The conspiracy may be shown by circumstantial evidence from which an inference of a common design may be drawn, it not being vital to demonstrate that the conspirators met and agreed in terms to a set design and to pursue it by common means. Price v. State, 4 Md. App. 701, 704.