Lotharp v. State , 231 Md. 239 ( 1963 )

231 Md. 239 (1963) 189 A.2d 652

LOTHARP
v.
STATE

[No. 254, September Term, 1962.]

Court of Appeals of Maryland.

Decided April 3, 1963.

PER CURIAM:

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.