ELDRIDGE, J., delivered the opinion of the Court. MURPHY, C.J., and SMITH, J., dissent and MURPHY, C.J., filed a dissenting opinion in which SMITH, J., concurs at page 275 infra.

The issue in this criminal case is whether convictions of and sentences for both felony murder and the underlying felony, where both charges arose from the same act or transaction and were tried at the same time, violate the prohibition against double jeopardy contained in the Fifth Amendment to the United States Constitution, and applicable to state court proceedings by virtue of the Fourteenth Amendment.

The State presented evidence at the trial which, if believed, established the following facts. The defendant Newton and a companion, after borrowing a revolver, hailed a taxicab in Baltimore City during the evening of December 19, 1973. Newton sat in the front seat with the driver and the companion sat in the rear seat. After proceeding about one block the companion told the driver that he should stop the cab and that it was a "stick-up." The driver raised his hands but was shot four times with the revolver and killed. The companion testified at the trial that it was Newton who fired the revolver, and Newton testified that it was the companion.

At the conclusion of Newton's non-jury trial in the Criminal Court of Baltimore, the court found Newton guilty of first degree murder, stating that it was "murder in the course of the perpetration of an attempted robbery" of the cab driver. The court also found Newton guilty of attempted robbery. Finally, Newton was convicted on two charges of using a handgun in the commission of a crime of violence, one crime of violence being the felony murder and the other being the attempted robbery. Newton was sentenced to life imprisonment on the murder conviction, twenty years on the attempted robbery conviction, and five years on each handgun conviction. All sentences were concurrent.

On his appeal to the Court of Special Appeals, in addition to challenging the sufficiency of the evidence with respect to all charges, Newton argued that the Fifth Amendment to the United States Constitution precluded convictions and sentences for both felony murder and the underlying felony as well as for both of the handgun violations. He argued that, in light of Fifth Amendment double jeopardy principles, the underlying felony merged into the felony murder. The Court of Special Appeals, rejecting Newton's arguments, upheld all four convictions and sentences, Newton v. State, 31 Md. App. 344, 356 A.2d 274 (1976). This Court then granted Newton's petition for a writ of certiorari limited to the double jeopardy questions.

In Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the Supreme Court held that the Fifth Amendment prohibition against placing a defendant twice in jeopardy for the same offense is applicable in state prosecutions. Federal double jeopardy principles, therefore, are controlling in determining whether a defendant has been placed twice in jeopardy in violation of the federal Constitution. See Thomas v. State, 277 Md. 257, 267 n. 5, 353 A.2d 240 (1976); Jourdan v. State, 275 Md. 495, 506, 341 A.2d 388 (1975); Neal v. State, 272 Md. 323, 327, 322 A.2d 887 (1974); Matter of Anderson, 272 Md. 85, 92, 321 A.2d 516, appeal dismissed sub nom Epps v. Maryland, 419 U.S. 809, 95 S.Ct. 21, 42 L.Ed.2d 35 (1974); Pugh v. State, 271 Md. 701, 704-705, 319 A.2d 542 (1974). The Fifth Amendment guarantee against double jeopardy prohibits both successive prosecutions for the same offense as well as multiple punishment for the same offense. United States v. Wilson, 420 U.S. 332, 342-343, 95 S.Ct. 1013, 1021, 43 L.Ed.2d 232 (1975); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). In Ex parte Lange, 18 Wall. 163, 21. L.Ed. 872 (1873), the Supreme Court emphasized that the common law prohibition against multiple punishment upon a single conviction for the same offense was inherent in the constitutional prohibition against double jeopardy ( id. at 168, 173):

"If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence. And though there have been nice questions in the application of this rule to cases in which the act charged was such as to come within the definition of more than one statutory offence, or to bring the party within the jurisdiction of more than one court, there has never been any doubt of its entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offence.

* * *

"For of what avail is the constitutional protection against more than one trial if there can be any number of sentences pronounced on the same verdict? Why is it that, having once been tried and found guilty, he can never be tried again for that offence? Manifestly it is not the danger or jeopardy of being a second time found guilty. It is the punishment that would legally follow the second conviction which is the real danger guarded against by the Constitution. But if, after judgment has been rendered on the conviction, and the sentence of that judgment executed on the criminal, he can be again sentenced on that conviction to another and different punishment, or to endure the same punishment a second time, is the constitutional restriction of any value? Is not its intent and its spirit in such a case as much violated as if a new trial had been had, and on a second conviction a second punishment inflicted?

"The argument seems to us irresistible, and we do not doubt that the Constitution was designed as much to prevent the criminal from being twice punished for the same offence as from being twice tried for it."

Cf. Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153 (1915). See also Comment, Double Jeopardy, 75 Yale L.J. 262, 266 n. 13 (1965).

In the instant case, there has been but one prosecution and trial for the felony murder and the underlying felony so that no issue concerning successive trials for the same offense is presented. Cf. Bynum v. State, 277 Md. 703, 707-708, 357 A.2d 339, cert. denied, 429 U.S. 899, 97 S.Ct. 264, 50 L.Ed.2d 183 (1976). However, both parties and the Court of Special Appeals have proceeded on the assumption that if both offenses are deemed the same under double jeopardy principles, so that both offenses merge upon conviction, separate sentences on both would constitute double punishment and the judgment of conviction and sentence on the lesser offense must be vacated. Even though the sentences on the felony murder conviction and the underlying felony of attempted robbery are concurrent, this assumption is valid in view of our prior Maryland cases in which the Court has reviewed the validity of all convictions and sentences challenged even though concurrent. Stewart v. Warden, 243 Md. 697, 699-700, 221 A.2d 709 (1966); Crowe and Williston v. State, 240 Md. 144, 146, 152-153, 213 A.2d 558 (1965). See the discussion of this question in Benton v. Maryland, supra, 395 U.S. at 787-793; see also United States v. Belt, 516 F.2d 873, 875 n. 7, 876 (8th Cir. 1975).

The issue in this case, then, is whether felony murder and the underlying felony upon which the murder conviction is founded are to be deemed the same offense under federal double jeopardy principles. In Thomas v. State, supra, 277 Md. 257, we considered for the first time since Benton v. Maryland, supra, the federal standard for determining whether two offenses arising from the same act or transaction are treated as the same for double jeopardy purposes. We noted that the test employed by the Supreme Court in determining whether two offenses are deemed the same for double jeopardy purposes is the required evidence test as formulated in Morey v. Commonwealth, 108 Mass. 433 (1871), and adopted by the Court in Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489 (1911). In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), in determining whether separate sentences could be imposed for separate counts of an indictment charging various statutory narcotics violations arising from the same transaction, the Court set forth the required evidence test as follows:

"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not."

As to the proper application of the required evidence test, we said ( Thomas v. State, supra, 277 Md. at 267):

"Certain principles concerning the required evidence or same evidence test emerge from the cases. The required evidence is that which is minimally necessary to secure a conviction for each statutory offense. If each offense requires proof of a fact which the other does not, or in other words, if each offense contains an element which the other does not, the offenses are not the same for double jeopardy purposes even though arising from the same conduct or episode. But, where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other, the offenses are deemed to be the same for double jeopardy purposes." (Emphasis supplied.)

To the same effect, see Bynum v. State, supra, 277 Md. at 706, and Cousins v. State, 277 Md. 383, 388-389, 354 A.2d 825, cert. denied, 429 U.S. 1027, 97 S.Ct. 652, 50 L.Ed.2d 631 (1976).

As we pointed out in both Thomas v. State, supra, 277 Md. at 266-267, and Cousins v. State, supra, 277 Md. at 395-396, this Court prior to Benton v. Maryland, supra, had also employed the required evidence test to determine whether multiple punishment or successive trials violated the common law prohibition against double jeopardy. Thus, in Veney v. State, 227 Md. 608, 611-614, 177 A.2d 883 (1962), the Court observed that while the common law doctrine of merger was no longer followed in Maryland, a more modern concept of merger based upon double jeopardy principles had been recognized and cited Gavieres v. United States, supra, to the effect that "`[a] single transaction may be an offense against two statutes if each statute requires proof of a fact which the other does not.'" Applying the required evidence test, the Court in Veney held that the offense of carrying a concealed weapon does not merge into either the offense of assault with intent to murder or attempt to rob with a deadly weapon. The Court reasoned that the concealed weapon offense requires proof of the fact that the accused was carrying a weapon concealed, a fact not necessary to sustain a conviction on either the assault or attempted robbery charges. Conviction on the assault and attempted robbery charges would require proof of facts not necessary to sustain a conviction on the concealed weapon charge.

Similarly, in Bennett v. State, 229 Md. 208, 212-214, 182 A.2d 815 (1962), the Court, citing Blockburger v. United States, supra, stated that under the required evidence test the offenses of contributing to the delinquency of a minor and statutory rape would merge as only statutory rape required proof of an additional fact to secure a conviction. And in Green v. State, 243 Md. 75, 80-81, 220 A.2d 131 (1966), the Court held that the offense of assault merged into the offense of rape as the facts necessary to establish the assault were necessary to prove rape.

Thus, under both federal double jeopardy principles and Maryland merger law, the test for determining the identity of offenses is the required evidence test. If each offense requires proof of a fact which the other does not, the offenses are not the same and do not merge. However, if only one offense requires proof of a fact which the other does not, the offenses are deemed the same, and separate sentences for each offense are prohibited.

Applying the required evidence test, it would seem clear that the felony murder and the underlying felony must be deemed the same for double jeopardy purposes. Maryland Code (1957, 1976 Repl. Vol.), Art. 27, § 407-410 provide that certain types of murder shall be murder in the first degree. All murder not provided for in §§ 407-410 is murder in the second degree (Art. 27, § 411). These sections do not create any new statutory crimes, but rather divide the crime of murder, as known at common law, into degrees. Gladden v. State, 273 Md. 383, 389-390, 330 A.2d 176 (1974); Stansbury v. State, 218 Md. 255, 260, 146 A.2d 17 (1958).

Section 407 provides, inter alia, that "[a]ll murder which shall be perpetrated . . . by any kind of wilful, deliberate and premeditated killing shall be murder in the first degree." To establish first degree murder under this section it must be proven that the homicide was wilful, deliberate, and premeditated, which also establishes the element of malice. Dorsey v. State, 278 Md. 221, 362 A.2d 642 (1976); Gladden v. State, supra. However, under § 410, murder committed in the perpetration of certain enumerated felonies, including attempted robbery, is first degree murder. Under common law principles, a killing in the perpetration of a robbery is murder. Stansbury v. State, supra; Wood v. State, 191 Md. 658, 666-667, 62 A.2d 576 (1948); Evans v. State, 28 Md. App. 640, 686 n. 23, 349 A.2d 300 (1975), aff'd, 278 Md. 197, 362 A.2d 629 (1976). By proving every element of the underlying felony, the element of malice necessary for murder is established. Warren v. State, 29 Md. App. 560, 566, 350 A.2d 173 (1976); Evans v. State, supra, 28 Md. App. at 700. And having established murder by proving a homicide during the perpetration or attempted perpetration of a felony, § 410 provides that the murder shall be murder in the first degree. Thus, to prove first degree murder under § 410, there is no need to prove wilfulness, deliberation and premeditation as would be required by § 407. See Veney v. State, 251 Md. 159, 174, 246 A.2d 608 (1968), cert. denied, 394 U.S. 948, 89 S.Ct. 1284, 22 L.Ed.2d 482 (1969); Stansbury v. State, supra, 218 Md. at 260; Mumford v. State, 19 Md. App. 640, 643, 313 A.2d 563 (1974).

Therefore, to secure a conviction for first degree murder under the felony murder doctrine, the State is required to prove the underlying felony and the death occurring in the perpetration of the felony. The felony is an essential ingredient of the murder conviction. The only additional fact necessary to secure the first degree murder conviction, which is not necessary to secure a conviction for the underlying felony, is proof of the death. The evidence required to secure a first degree murder conviction is, absent the proof of death, the same evidence required to establish the underlying felony. Therefore, as only one offense requires proof of a fact which the other does not, under the required evidence test the underlying felony and the murder merge. If, on the other hand, the murder conviction is premised upon independent proof of wilfulness, premeditation and deliberation under § 407, or if the evidence is sufficient for a jury to find those elements, the offenses would not merge. Each offense would then require proof of facts which the other did not, and convictions on both would be proper. Robinson v. State, 249 Md. 200, 207-211, 238 A.2d 875, cert. denied, 393 U.S. 928, 89 S.Ct. 259, 21 L.Ed.2d 265 (1968).

Our conclusion is in accord with that reached by several other jurisdictions, which, applying the required evidence test, have held that the underlying felony and the felony murder merge. United States v. Greene, 489 F.2d 1145 (D.C. Cir. 1973), cert. denied, 419 U.S. 977, 95 S.Ct. 239, 42 L.Ed.2d 190 (1974); State ex rel. Wikberg v. Henderson, 292 So.2d 505 (La. 1974); People v. Anderson, 62 Mich. App. 475, 233 N.W.2d 620 (1975); State v. Thompson, 280 N.C. 202, 185 S.E.2d 666 (1972); State v. Thomas, 114 N.J. Super. 360, 276 A.2d 391 (1971); Ex parte Jewel, 535 S.W.2d 362 (Tex.Crim. App. 1976); Ronzani v. State, 24 Wis.2d 512, 129 N.W.2d 143 (1964). However, other jurisdictions have held that the felony murder and the underlying felony do not merge, and that successive trials or multiple punishment for both are permissible. State v. Clayton, 109 Ariz. 587, 514 P.2d 720 (1973); Turner v. State, 248 Ark. 367, 452 S.W.2d 317 (1970), reversed on other grounds, 407 U.S. 366, 92 S.Ct. 2096, 32 L.Ed.2d 798 (1972); Slater v. State, 316 So.2d 539 (Fla. 1975); State v. Hall, 86 Idaho 63, 383 P.2d 602 (1963); State v. Chambers, 524 S.W.2d 826 (Mo. 1975), cert. denied, 423 U.S. 1058, 96 S.Ct. 794, 46 L.Ed.2d 649 (1976); Carmody v. Seventh Judicial District Court, 81 Nev. 83, 398 P.2d 706 (1965); People v. Tutuska, 19 Misc.2d 308, 192 N.Y.S.2d 350 (1959); Harris v. State, 555 P.2d 76 (Okla. Crim. 1976); Commonwealth v. Smith, 452 Pa. 1, 304 A.2d 456, cert. denied, 414 U.S. 1076, 94 S.Ct. 593, 38 L.Ed.2d 483 (1973); State v. Briggs, 533 S.W.2d 290 (Tenn. 1976); State v. Barton, 5 Wn.2d 234, 105 P.2d 63 (1940).

Most of the cases which hold that murder and the underlying felony are different offenses seem to reason that both contain different elements. While this is true where first degree murder such as that provided for in § 407, requiring proof of wilfulness, premeditation and deliberation, is concerned, it is not true where felony murder is involved. As previously discussed, where first degree murder is established under the felony murder doctrine, proof of the underlying felony is an essential element which would not otherwise be required if the conviction were obtained by independent proof of wilfulness, premeditation and deliberation. As the court in State v. Thompson, supra, 185 S.E.2d at 675, explained:

"However, the separate judgment imposing punishment for felonious breaking and entering in addition to that imposed for the murder conviction cannot stand. When a person is convicted of murder in the first degree no separate punishment may be imposed for any lesser included offense. Technically, feloniously breaking and entering a dwelling is never a lesser included offense of the crime of murder. However, in the present and similar factual situations, a cognate principle applies. Here, proof that defendant feloniously broke into and entered the dwelling of Cecil Mackey, to wit, Apartment #3, 3517 Burkland Drive, was an essential and indispensable element in the State's proof of murder committed in the perpetration of the felony of feloniously breaking into and entering that particular dwelling. The conviction of defendant for felony-murder, that is, murder in the first degree without proof of malice, premeditation or deliberation, was based on a finding by the jury that the murder was committed in the perpetration of the felonious breaking and entering. In this sense, the felonious breaking and entering was a lesser included offense of the felony-murder."

The dissent in the instant case argues that this reasoning focuses upon "the actual evidence adduced at trial" to determine the elements of the crime rather than the evidence required to establish the elements of each offense and therefore represents an application of the so-called "actual evidence test" rather than the required evidence test. Under the actual evidence test, offenses are deemed the same if the evidence actually produced at trial on both offenses is substantially the same. This test was rejected by the Supreme Court in Harris v. United States, 359 U.S. 19, 79 S.Ct. 560, 3 L.Ed.2d 597 (1959), and by this Court in Thomas v. State, supra.

In Harris v. United States, supra, the defendant was convicted of the offenses of the purchase of heroin in an unstamped package and of receiving and concealing the drug knowing it to have been unlawfully imported. The conviction was secured solely upon proof of possession of narcotics which raised a rebuttable presumption of concealment and illegal purchase. The Court rejected the defendant's contention that because the same evidence was used to secure both convictions, multiple punishment was not permitted. The Court reasoned that if the presumptions of concealment and illegal purchase were rebutted, each offense would require proof of different facts. The offenses were therefore different under the required evidence test. The dissent argues that this is the situation here. However, proof of the underlying felony does not, like proof of possession in Harris, raise a rebuttable presumption of an essential element of the alleged crime. Rather, proof of the underlying felony is itself an essential element of first degree murder under the felony murder doctrine. As previously discussed, first degree murder requires proof of wilfulness, deliberation and premeditation or proof of a killing during an enumerated felony. The underlying felony is one of two alternative elements of the crime. It is not merely evidence creating a rebuttable presumption that wilfulness, deliberation and premeditation were present. Once the State proves a killing during an enumerated felony, the offense of first degree murder is necessarily established, regardless of any evidence relative to wilfulness, deliberation and premeditation. This is different from the situation in Harris where proof of possession would not necessarily establish the offenses.

The State, at oral argument, conceded that under the felony murder doctrine, the only fact which need be proven to establish first degree murder in addition to the underlying felony is proof of the death, and thus, under the required evidence test as set forth in Bynum v. State, supra, Cousins v. State, supra, and Thomas v. State, supra, the two offenses would be deemed the same. However, the State argued that this case is controlled by our decision in Price v. State, 261 Md. 573, 277 A.2d 256 (1971). In Price, the Court held that concurrent sentences for both felony murder and the underlying felony of arson were proper because arson and murder are separate offenses, neither being a "lesser included" offense within the other. Price v. State, supra, 261 Md. at 580. The Court in Price, however, did not consider whether multiple punishment for both felony murder and the underlying felony upon which the murder conviction is obtained would violate the Double Jeopardy Clause of the Fifth Amendment, but only whether the two offenses merged under Maryland law. For this reason, Price can no longer be regarded as authoritative.

In conclusion, the defendant's separate convictions and sentences for the felony of attempted robbery and murder committed in the perpetration of that felony constitute, under the required evidence test, double punishment for the same offense in violation of the Fifth Amendment's double jeopardy clause. Consequently, the conviction for the lesser offense of attempted robbery must be vacated.

Additionally, because the attempted robbery conviction merges, there is only one conviction of a crime of violence, murder. In view of the fact that, as a matter of law, only one felony has been committed, there can be only one judgment of conviction of use of a handgun in the commission of a crime of violence. Accordingly, the conviction and sentence for use of a handgun during the commission of an attempted robbery are also vacated.

Judgment reversed and case remanded to the Court of Special Appeals with instructions to reverse the judgment of the Criminal Court of Baltimore on Indictment No. 57304373 (attempted robbery and use of a handgun in the commission of a crime of violence).

Costs to be paid by the Mayor and City Council of Baltimore.