Strine v. State

• Decision Date: 26 April 1954
• Docket Number: No. 115,115
• Citation: 204 Md. 339,104 A.2d 601
• Parties: STRINE v. STATE.
• Court: Maryland Court of Appeals

Page 339

204 Md. 339

104 A.2d 601

STRINE v. STATE.

No. 115.

Court of Appeals of Maryland.

April 26, 1954.

Joseph G. Lindamood, Jr., Laurel, Md. (Joseph A. DePaul, Hyattsville, on the brief), for appellant.

Edward D. E. Rollins, Atty. Gen., W. Giles Parker, Asst. Atty. Gen., Carlyle J. Lanceaster, State's Atty., Prince George's County, Upper Marlboro, on the brief, for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

COLLINS, Judge.

This is an appeal from a judgment and sentence for receiving stolen goods.

The appellant, together with George C. Cole and George A. Branson, was charged by the grand jury for Prince George's County in an indictment containing three counts with the larceny of and unlawfully receiving a motorcycle on June 25, 1953. Messrs. Cole and Branson were eliminated from the case. Appellant's case was tried before the trial judge and a jury. The appellant was found not guilty of larceny but guilty of receiving stolen goods. From that judgment and sentence on that verdict he appeals to this Court. He contends that his request for a directed verdict should have been granted by the trial judge.

At the end of the State's case, the appellant made a motion for a directed verdict under Maryland Rule 5A, of the Criminal Rules of Practice and Procedure. This motion was refused by the trial judge. The appellant then put on testimony is his defense and at the end of the whole case, he renewed his motion for a directed verdict. The appellant, defendant, argues that without the testimony offered in defense, there was no evidence to show that the alleged crime was committed in Prince George's County, but admits that venue in Prince George's County was shown in the testimony offered by him. He further contends that the word 'renew' in the rule means that, after he had offered his testimony in defense and renewed his motion for a directed verdict, the trial judge 'had to consider the motion as though no evidence had been presented by the appellant in defense.' We can find no authority to sustain appellant's contention.

In Maryland in the absence of a request for an instructed verdict there can be no review by the court of the sufficiency of the evidence before the jury. Auchincloss v. State, 200 Md. 310, 314, 315, 89 A.2d 605; Hendrix v. State, 200 Md. 380, 391, 90 A.2d 186. Maryland Rule 5A, supra, provides as follows: 'Directed Verdict--Entry By Court. (a) At the conclusion of the evidence offered by the State the accused may request an instruction that the evidence is insufficient in law to sustain his conviction of the offense or offenses charged in the indictment or information, whether charged by way of separate counts or as a matter of law under a single count. If the requested instruction is refused, the accused may offer evidence without having reserved the right to do so, but by so doing, he withdraws his request for such instruction. The request for such an instruction may be renewed at the close of the whole case.' (Italics supplied). Code 1951, Article 27, § 700.

Rule 29(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., provides: 'Motion for Judgment of Acquittal. Motions for directed verdicts are abolished and motions for judgment of acquittal shall be used in their place. The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. If a defendant's motion for judgment of acquittal at the close of the evidence offered by the government is not granted, the defendant may offer evidence without having reserved the right.' According to the advisory committee's notes, the change from directed verdict to judgment of acquittal is purely one of nomenclature, which 'does not modify the nature of the motion or enlarge the scope of matters which may be considered.' 4 Barron and Holtzoff, Sec. 2221.

Under Rule 29(a) of the Federal Rules of Criminal Procedure, supra, a motion for acquittal has taken the place of a motion for a directed verdict. Except for this change, and the terminology of Maryland Rule 5A about withdrawing his request for such instruction and the motion being 'renewed', Federal Rule 29(a) is substantially the same as Maryland Rule 5A. The Federal cases indicate that under Rule 29(a), if the defendant moves for acquittal after the close of the prosecution's evidence, and his motion is denied, he 'waives' or 'abandons' this motion by proceeding to introduce his own evidence. He may make a subsequent motion after the close of all evidence, but in appealing from a refusal of this second...