The reason for the distinction is because "the absence of premeditation does not prevent there being present [the intent to kill]." Abney v. State , 244 Md. 444, 448, 223 A.2d 792 (1966). Instead, one must prove the element of premeditation by showing that the "design to kill must have preceded the killing by an appreciable length of time, that is, time enough to deliberate."
Evans v. State, 28 Md.App. at 701-02, 349 A.2d at 338. See Rollin M. Perkins and Ronald N. Boyce, Criminal Law 59 (3rd Ed. 1982). Depending upon the inference drawn by the trier of fact, "[a]n intent to inflict great bodily injury is sufficient for malice . . . if there is no justification, excuse, or mitigation"; Couser v. State, 221 Md. 474, 475-76, 157 A.2d 426, 427 (1960) (holding that the defendant's act of stabbing a police officer with a switchblade knife was sufficient to show an intent to inflict grievous bodily harm where defendant stabbed the officer in the thigh during a struggle and the weapon was aimed at the officer's abdomen with the intent to incapacitate him); Abney v. State, 244 Md. 444, 449, 223 A.2d 792, 795-96 (1966) (holding that the evidence was sufficient to support a finding of malice in the killing and murder in the second degree where the defendant threatened to shoot or kill anyone who tried to break up the fight and he in fact shot the victim, even though the defendant claimed that the shooting was unintended, accidental and that he lacked capacity to commit murder due to his epilepsy, and drug and alcohol use). In Sandstrom v. Montana, 442 U.S. 510, 517-18, 99 S.Ct. 2450, 2456, 61 L.Ed.2d 39, 46-47 (1979), the United States Supreme Court clarified the substantive law and stated that, only an inference, rather than a presumption of intent, may be drawn from voluntary acts.
In these circumstances, we think there was evidence before the Court, sitting without a jury, which showed directly, or circumstantially, or supported a rational inference of facts from which the trial judge could fairly be convinced, beyond a reasonable doubt, of Mobley's guilt of the crime of armed robbery, and accordingly, we conclude that the judgment of conviction was not clearly erroneous. Abney v. State, 244 Md. 444, 223 A.2d 792 (1966); DeVaughan v. State, 232 Md. 447, 194 A.2d 109 (1963). Maryland Rule 886 a.
Maryland Rule 886 a. We do not determine on appeal whether or not the appellant was guilty beyond a reasonable doubt, but whether or not there was any evidence present or rational inferences to be drawn from the evidence from which the trial court could find the appellant guilty beyond a reasonable doubt. If there was such evidence and reasonable inferences, we will not find that the trial court's decision was erroneous. Abney v. State, 244 Md. 444, 447, 223 A.2d 792, 794-95 (1966), cert. denied, 387 U.S. 925, 87 S.Ct. 2043, 18 L.Ed.2d 981. Inasmuch as the credibility of the witnesses is a matter for the trier of facts to determine, the trial court may disbelieve any exculpatory statements by the accused. Bird v. State, 231 Md. 432, 436, 190 A.2d 804, 806 (1963).
" The judge rejected the proposed instruction. In support of her position, appellant refers us to Abney v. State, 244 Md. 444, 448, 223 A.2d 792 (1966), cert. denied, 387 U.S. 925, 87 S.Ct. 2043, 18 L.Ed.2d 981 (1967), wherein the Court of Appeals noted that "[a] felonious homicide is presumed to have been committed with malice aforethought and so to constitute murder in the second degree." In Hook v. State, 315 Md. 25, 28 n. 5, 553 A.2d 233 (1989), the Court again noted that felonious homicide "is presumed to be murder in the second degree," and that "[t]he burden is on the state to show that the killing was within the statutory definitions of first degree murder.
Second degree murder is the killing of another person without legal justification, excuse, or mitigation, and with either the intent to kill or the intent to inflict grievous bodily harm. Tate v. State, 236 Md. 312, 317, 203 A.2d 882 (1964); Smith v. State, 41 Md. App. 277, 280, 398 A.2d 426 (1979). Unlike first degree murder, second degree murder does not require premeditation or deliberation. Robinson v. State, 249 Md. 200, 209, 238 A.2d 875, cert. denied, 393 U.S. 928, 89 S.Ct. 259, 21 L.Ed.2d 265 (1968); Abney v. State, 244 Md. 444, 448, 223 A.2d 792 (1966); DeVaughn v. State, 232 Md. 447, 456-57, 194 A.2d 109 (1963). Voluntary manslaughter is a killing that would otherwise be second degree murder, but for the presence of a mitigating circumstance.
A variant form of the same mistake is, "An intentional and unlawful [thereby precluding justification or excuse] killing will be presumed to be with malice." Law v. State, 21 Md. App. 13, 30, 318 A.2d 859; Abney v. State, 244 Md. 444, 448, 223 A.2d 792. When the presumption appears in these forms, the first two aspects of malice are given as having been established and the State is relieved of its burden of proving only the third aspect of malice โ the absence of mitigation.
In Wilbur the courts discuss and construe a Maine statute which is dissimilar to the Maryland statutes concerned with the crime of murder. The instructions given by Judge Barrick are in keeping with a number of decisions of the Court of Appeals, see, e.g., Abney v. State, 244 Md. 444, 223 A.2d 792 (1966); DeVaughn v. State, 232 Md. 447, 194 A.2d 109 (1963); and this Court in Lindsay v. State, 8 Md. App. 100, 258 A.2d 760 (1969); Dyson v. State, 6 Md. App. 453, 251 A.2d 606 (1969); Bagley v. State, 6 Md. App. 375, 251 A.2d 246 (1969); Brown v. State, 4 Md. App. 261, 242 A.2d 570 (1968). In Lindsay, supra, we decided an issue, very much akin to that raised in the present case, in a manner adverse to the position taken by appellant.
Once the State has shown beyond a reasonable doubt that a felonious homicide ( i.e., murder) has been committed, it is presumed to be murder in the second degree and the burden is upon the accused to show circumstances of alleviation, excuse or justification which would reduce the offense to manslaughter or excuse it entirely. Abney v. State, 244 Md. 444, 223 A.2d 792 (1966), cert. denied, 387 U.S. 925 (1967); Lindsay v. State, 8 Md. App. 100, 258 A.2d 760 (1969). In Maryland, as in all States of the Union, upon his plea of not guilty "an accused may stand, shielded by the presumption of his innocence, until it appears that he is guilty. . . ."
We do not, therefore, determine whether the defendant was guilty beyond a reasonable doubt; our function is to determine whether there was any evidence, or proper inferences from the evidence, upon which the trial court could find the defendant guilty beyond a reasonable doubt, and if the record shows such evidence, or proper inferences, we cannot find that the decision was clearly erroneous. Abney v. State, 244 Md. 444; Spencer v. State, supra. On the record before us, we think there was legally sufficient evidence before the trial court from which it could properly conclude that the appellant was in the alley during the assault on Mrs. McNeal. From the testimony of Randolph Crouell, we think the trial judge could properly find that appellant was with the boys who approached Mrs. McNeal as she sat in front of her house; and that while there is no evidence to show that appellant physically assisted in dragging the victim into the alley, there was evidence showing that he was not only at the exact spot where the savage and brutal assault immediately thereafter occurred, but that he had a flashlight in his possession which he utilized in such manner as to provide better illumination for the perpetration of the crime.