Summary
finding that appellate review of sufficiency of the evidence is predicated on the denial of the motion for judgment and therefore there can be no review without a motion for judgment
Summary of this case from Fryberger v. StateOpinion
[No. 254, September Term, 1962.]
Decided April 3, 1963.
CRIMINAL LAW — Appeal — Jury Case — None To Review Sufficiency Of Evidence, Unless Motion For Judgment Of Acquittal. An appellate review of the sufficiency of the evidence in a criminal case tried by a jury is predicated on the refusal of the trial court to grant a motion for judgment of acquittal. In the instant homicide case, there was no motion for judgment of acquittal. Hence, there could be no review. p. 240
Decided April 3, 1963.
Appeal from the Circuit Court for Prince George's County (DIGGES, J.).
Lonnie Lotharp was convicted of a homicide and he appealed.
Judgment affirmed.
Submitted on brief to BRUNE, C.J., and HENDERSON, PRESCOTT, HORNEY and SYBERT, JJ.
Submitted on brief by John J. Mitchell for appellant.
Submitted on brief by Thomas B. Finan, Attorney General, James P. Garland, Assistant Attorney General, Arthur A. Marshall and Frank P. Flury, State's Attorney and Deputy State's Attorney, respectively, for Prince George's County, for appellee.
The appellant, convicted of a homicide by a jury at a trial in which he was represented by counsel of his own choosing, contends on appeal that the failure of counsel to move for a judgment of acquittal should not preclude him from having this Court review the sufficiency of the evidence to convict him of murder in the second degree.
Since no motion for judgment of acquittal was made at any stage of the trial there can be no review of the sufficiency of the evidence on appeal. Under the provisions of § 5 of Art. XV of the Constitution of this State, Code (1957), Art. 27, § 593, and Maryland Rule 755, an appellate review of the sufficiency of the evidence in a criminal case tried by a jury is predicated on the refusal of the trial court to grant a motion for judgment of acquittal. Humphreys v. State, 227 Md. 115; Ledbetter v. State, 224 Md. 271. See also Stevens v. State, 230 Md. 47. The judgment must therefore be affirmed.
We may add that an examination of the record indicates that had the motion for judgment of acquittal been made pursuant to the rule, the result would be the same.
Judgment affirmed.