dissenting:
I am satisfied that as a matter of law the evidence in this case is not sufficient to support the convictions of the appellant of manslaughter by automobile. I would reverse the judgments of conviction on those charges, but I would affirm the judgments on the traffic charges.
The opinion evidence of the eyewitness estimating the speed of appellant’s vehicle was properly admitted. There was no error in that ruling by the trial judge. Nor is there any intimation in the record that the sentences imposed were influenced by ill will, passion, prejudice, or any other unworthy motive.
My disagreement with the majority, and with the trial judge, is confined to the question of sufficiency to convict of manslaughter. Let us clearly understand that the sufficiency of evidence to submit the question of guilt to the finder of facts is a question of law. If a court’s ruling on any question of law is not right, it is wrong. When a ruling involves the exercise of discretion, the range within which a ruling may be right is equal to the permitted range of discretion. But the law gives no judge or court discretion to make a wrong ruling.
The “clearly erroneous” measure which under Maryland Rule 1086 we apply to the factual conclusions of a trial judge on the evidence in a non-jury case has no application to the legal rulings of that same judge in the same case. It is the weight of the evidence and the credibility of the witnesses which are left to the determination of the trial judge in a non-jury case, subject to reversal on appeal only when clearly erroneous. But a ruling on a matter of law has no such insulation from appellate reversal. Sufficiency of evidence is not a conclusion of fact, it is a matter of law.
I take the facts, as the court is required to do in testing sufficiency, in the light most favorable to the State. Let us examine the law. In its statutory source, the law is stated simply. The crime of manslaughter by automobile is “causing the death of another as the result of the driving, operation or control of an automobile * * * in a grossly *555negligent manner”. Code, Art. 27, § 388. Judge Moore correctly points out in his opinion for the majority that “in a grossly negligent manner” means “conduct of the defendant, considering all of the factors in the case, which amounts to a wanton or reckless disregard for human life”.
Whether “all of the factors” in any particular case cause any individual judge to conclude that they may, if believed, and given permissible weight by the finder of the facts, add up to a “wanton or reckless disregard for human life”, requires an evaluation not altogether free of subjectivity. For the best available guide to maximum objectivity, I shall review the “factors” present in the cases in which the Court of Appeals and this Court have ruled upon the sufficiency of the evidence to support a conviction of manslaughter by automobile.
The Court of Appeals has held the evidence sufficient in these cases:
Hughes v. State, 198 Md. 424, 84 A. 2d 419 (1951).
Defendant worked in a family owned non-union coal mining operation. Coal miners picketing the nearby George’s Creek Coal Company drove nails in the tires of defendant’s truck while he was parked there. On leaving, he approached a group of pickets standing off the road near a parked car. Defendant increased his speed, and swerved his truck several feet off the road toward the men. He apparently attempted to swerve back toward the road, but the rear of his truck did not respond, and hit the parked car and two men who were against the car. One of the men died of his injuries. The Court felt that the defendant, driving in daylight on an unobstructed road, showed a wanton or reckless disregard for human life when he intentionally swerved his truck toward the men on the side of the road.
Duren v. State, 203 Md. 584, 102 A. 2d 277 (1954).
Defendant was driving at least 60 miles an hour, at 7:00 P.M. on Fremont Avenue at its intersection with Laurens Street, a heavily congested residential and business area in the City of Baltimore. He left skid marks of 72 to 89 feet in length before striking the victim, a pedestrian. The Court *556noted the length of the skid marks, both before and after impact, and that the force of the impact was sufficient to throw a human body high and far enough to land on the trunk of another car a number of feet away. It noted that the defendant was driving at this speed on a city street in a populous residential and business area at a time when citizens afoot and in cars were likely to be on the street. The Court held this evidence sufficient to justify a finding that driving on a city street at a speed so grossly excessive that the car was beyond effective control was a wanton or reckless disregard for human life.
Clay v. State, 211 Md. 577, 128 A. 2d 634 (1957).
Defendant increased speed and passed another car at an intersection, and hit a pedestrian who was in the crosswalk. He had attended a party, and had been drinking, but there was no evidence of his degree of intoxication. The accident happened around 1:00 A.M. at the intersection of Central and Ashland Avenues in downtown Baltimore. There “was traffic coming up and down”, and “people crossing the street”. The defendant fled the scene, and was arrested the next day. The body of the victim was found 108 feet from the crosswalk. The Court said that flight was “relevant to be considered by the tribunal trying the facts as bearing upon guilt”. The Court stressed passing recklessly at an intersection, striking a pedestrian in a crosswalk, excessive speed under the circumstances, driving while drinking, and flight, as sufficient to justify a finding of wanton or reckless disregard for human life.
Lilly v. State, 212 Md. 436, 129 A. 2d 839 (1957).
This two vehicle collision, killing defendant’s passenger, happened at 3:30 A.M. at the intersection of Eastern Avenue and Bouldin Street, in Baltimore City. Defendant, driving between 50 and 60 miles an hour, entered Eastern Avenue without stopping, as required by a stop sign there, and collided with a bus. Defendant had been drinking. A police officer said the defendant did not know what happened, did not know where he had the accident, nor where he had been. The Court held the evidence sufficient.
Pierce v. State, 227 Md. 221, 175 A. 2d 743 (1961).
*557This case dealt primarily with the question of whether the facts proved the corpus delicti of the crime of manslaughter by automobile, so as to make the defendant’s admission that he was the driver and had been drinking, admissible. Defendant was one of the two occupants of the car. The other was killed. The car was driven at 90 to 100 miles an hour, failed to stop at a stop sign, attempted to turn without slowing, went through a steel guard rail, and came to rest against a tree. The Court held that this evidence supported a finding of guilt.
Abe v. State, 230 Md. 439, 187 A. 2d 467 (1963).
The evidence showed not only excessive speed, but drinking, and proceeding in the wrong lane in violation of law. Recognizing that speed alone may not be sufficient, the Court noted the additional factors and held that under all the circumstances the evidence was sufficient.
Wasileski v. State, 241 Md. 323, 216 A. 2d 551 (1966).
There was corroborated evidence that the defendant had been drinking quite heavily. He was driving at 5:30 P.M. in July, on Route 40, east of Cumberland. He was “flagrantly violating the Maryland traffic laws by driving on the wrong side of the road”, where he sideswiped one oncoming car and crashed into the next, killing a passenger. The Court held this evidence sufficient to show a wanton or reckless disregard for human life.
This Court, in two reported opinions, has held evidence sufficient to convict of manslaughter by automobile. They are:
Montague v. State, 3 Md. App. 66, 237 A. 2d 816 (1968).
At 7:30 Á.M. the defendant was observed driving “pretty fast” north on Route 1, swerving from the slow to the fast lane, going back and forth “like somebody playing with the wheel”. The car then “shot straight away” and crossed the center line and struck a car in the southbound slow lane. The defendant got out of his car, covered his face, and, accompanied by his woman passenger, ran from the scene. Defendant’s car left no skid mark leading to the point of impact, but left a side skid mark away from the impact for *558140 feet. About a half hour before, defendant had been stopped by a State Trooper for weaving. He had no driver’s license, and had been drinking. The Trooper gave him a ticket and directed him not to drive, but to take a cab or a bus home. The defendant never admitted that he was driving the car at the time of the collision, but he was identified by two eyewitnesses as the man who fled the accident scene. We held this evidence to be sufficient.
Tefke v. State, 6 Md. App. 139, 250 A. 2d 299 (1969).
There was evidence of excessive speed, which we said was corroborated by the location of the vehicles after the accident, the damage to the vehicles, and the fatal injuries. In addition to the corroborated evidence of speed, it was shown that the defendant failed to .stop at a red automatic signal, did not reduce speed as he entered the intersection, and had been drinking immediately prior to the accident.
In two cases the.Court of Appeals has reversed convictions of manslaughter by automobile, holding in each case that as a matter of law, the evidence was insufficient to support the conviction. They are:
Thomas v. States, 206 Md. 49, 109 A. 2d 909 (1954).
Defendant, driving a beer distribution truck for Montgomery County, went out of control at the top of a hill, careened down the hill going off the pavement first on one side, then the other, and struck and killed two children on a bridge at the bottom of the hill. Defendant, a 19 year old employee of the County, had drunk six bottles of beer during the five and one half hours before the accident, two of the bottles just a few minutes before the accident, which occurred at 3:30 P.M. The truck appeared, to a following witness, to be operated normally until it reached the curve at the top of the hill. The brakes on the truck had been recently repaired, but defendant had complained later to his superior that the brakes were still not functioning properly — sometimes they would take hold properly and sometimes they would grab. He had been told to take the truck in again when it could be spared. Defendant stated that he did not apply the brakes after the truck went out of control, as he *559was afraid it would upset the truck. An investigating officer noticed alcohol on defendant’s breath and asked him about it, but did not charge him with operating under the influence of alcohol.
The Court said there were three factors from which gross negligence might be deduced: excessive speed, defective brakes, and intoxication. The trial judge, without a jury, had based his finding of guilt on intoxication.
The Court of Appeals held that with respect to each of the three factors, the evidence was not sufficient to warrant a finding of gross negligence.
Johnson v. State, 213 Md. 527, 132 A. 2d 853 (1957).
The accident in this case occurred on William Street, a one way four lane highway in Baltimore City, at about 1:50 A.M. Where the street turns sharply to the left, defendant’s car failed to make the turn, and hit the far curb, then sideswiped a utility pole, and stopped some 600 feet from the pole. A passenger, who was thrown from the car and found 66 feet from the pole, died of his injuries. Another motorist approaching the turn heard wheels squealing, saw the defendant’s car pass her, and estimated its speed at 60 miles an hour, although as to miles an hour that estimate was considerably weakened by the witness’s ambivalence.
An investigating officer said the defendant had the odor of alcohol on his breath, but he appeared normal except for the usual nervousness.
The trial judge found the defendant guilty because his excessive speed rendered him unable to control the car. The Court of Appeals, in reversing the conviction, reviewed what it had said in other cases about speed. It said, at 532-33:
“In the Lilly case this Court quoted from the Duren case at page 443 of 212 Md.: ‘It is plain that the environment in which speed is indulged must determine whether it does or does not show gross negligence at a given time. Speed in the open country on a four lane highway may be very high and not constitute negligence. A much lower rate of speed in a city street may constitute gross *560negligence. This, too, was the law long before automobiles existed. * * * Obviously, what must be looked for in each case is whether, by reason of the speed in the environment, there was a lessening of the control of the vehicle to the point where such lack of effective control is likely at any moment to bring harm to another. Cf. Darienzo Trucking Corp. v. Sullivan, 202 Md. 32, 39-40, 95 A. 2d 293, 296. If there is found such lack of control, whether by reason of speed or otherwise, in a place and at a time when there is constant potentiality of injury as a result, there can be found a wanton and reckless disregard of the rights and lives of others and so, criminal indifference to consequences.’ To this we added that ‘Judge Henderson in the dissenting opinion in that [the Duren] case agreed that speed must be weighed in the light of the surrounding circumstances.’ ”
In the case now before us, the review of the facts by the trial court, summarized by Judge Moore in his opinion for the majority of this Court, builds a house of cards upon one, and only one, relevant basic fact — the opinion of a witness that appellant’s speed was 60 miles an hour.1
The review says that the appellant was guilty of erratic driving. I find no valid support for this statement. The witness said that at one point, when appellant’s car was well ahead of the witness, appellant changed from the left to the right lane of a two lane, one way roadway. In the course of such a change, he obviously had to straddle the lanes. The change of lanes in no way interfered with any other traffic. It was a perfectly lawful maneuver, and gives rise to no in*561ference of erratic driving. The witness said that while he and appellant were stopped side by side at a traffic light some twm or more blocks back, the appellant was “gunning his motor”. Although both seem to attach significance to that evidence, neither the trial judge nor the majority of this Court explains how gunning a motor indicates a wanton or reckless disregard for human life. If it has any significance at all, it might indicate an impatience from which one might infer a desire or tendency to speed, but inferring such a tendency can add nothing to the fact of speed, already showm.
The review says that the appellant failed to keep a proper lookout. There is no evidence to support this conclusion. It could be reached only by reasoning backward from the fact of the accident itself, and from the fact that the witness, who was some distance behind the appellant, said he saw the two young people step off the median strip and walk across the Park-way. What that means is that the witness saw the pedestrians enter and cross the left lane, 10 feet wide, before they entered the right lane, where appellant first saw them. It seems entirely reasonable to me that objects to one side of the path of an automobile will not show up in its headlight beams when the source of light is close to the objects, but will show up in the beams of headlights when the source is farther away.
Since the only relevant inquiry is the manner of operation of the automobile leading up to and at the time of the impact, such factors as the nature and force of the impact, the distance the victims were carried or thrown, marks of skidding, if any, and the distance the automobile traveled after the impact, would be significant only as indicators of speed if speed were an issue. In our consideration of sufficiency, we do not resolve issues of fact. The direct evidence estimating the speed at 60 miles an hour does away with any need for indicators to permit us to say that the trier of the facts could find from the evidence that the speed was 60 miles an hour.
Nor do I see any significance in what the appellant did after the accident. The trial judge said “his reflex was to *562take off”. I can only descend to the vernacular, and ask, “So what? ”. I am deeply concerned with his pre-accident conduct, but I have no judicial interest in his post-accident reflexes. Some of the cases have mentioned that flight from the scene is a factor which may be considered. So it is, when identity of the driver is an issue, or the corpus delicti of the crime is questioned, because under some circumstances flight may indicate a consciousness of guilt.
What do we have here? The driver, in panic, drove to his nearby home and went in, stayed a few minutes, then returned to the scene and reported to the police officer that he was the driver. Of course, even that brief flight is reprehensible, if understandable. But if its legal significance is that it shows a consciousness of guilt, is the majority prepared to say that this young man, in those few seconds after the accident, indulged in a process of sophisticated legal reasoning and concluded that he was guilty, not merely of simple negligence, but of gross negligence as defined in the judicial opinions construing Article 27, § 388 of the Maryland Code, and, by his flight, demonstrated his consciousness of that higher degree of guilt? I am not.
The cases reviewed have, for the most part, included factors of drinking, running through a stop sign or a red light, or driving on the wrong side of the road. Only in Duren v. State, supra, was “speed in the environment” held sufficient. The Court, in Duren, said, at 592:
“Obviously, what must be looked for in each case is whether, by reason of the speed in the environment, there was a lessening of the control of the vehicle to the point where such lack of effective control is likely at any moment to bring harm to another.”
The “lack of control” it discussed is that which exists “in a place and at a time when, there is constant potentiality of injury as a result”.
It is elementary that the effect of speed on the degree of control of a motor vehicle is relative, and no doubt begins when the vehicle is moved from a standing position. So the *563important considerations are whether the speed, under the circumstances, is “likely at any moment to bring harm to another”, or creates a “constant potentiality of injury”. The evidence in this case simply does not stand up under that test. It is true that contributory negligence of a victim does not excuse gross negligence of a defendant, but certainly the law does not impose upon a motorist the duty to expect the kind of negligence of the pedestrians in this case as a “constant potentiality”.
If I were writing the majority opinion for the Court in this case, I would adopt the concluding paragraph in Johnson v. State, supra, which said:
“The speed that was indulged in, at the time and in the place, in the case at bar is not such that amounts to criminal indifference to consequences. In the environment of the instant case, the evidence is not, in our estimation, sufficient to warrant a finding of guilt, beyond a reasonable doubt, of conduct on the part of the defendant amounting to a wanton or reckless disregard of the rights and lives of others. We are accordingly of the view that the conviction must be reversed.”
. I have said that the witness’s opinion was admissible and its credibility was for the trial judge. I would have difficulty in crediting it. The witness said that the two cars were side by side at a red light; defendant took off pretty fast, and got about a half a block ahead; and remained a half a block ahead for the next 2‘A blocks while the defendant was going 60 and the witness was going 40. The two cars were still so close together when the witness saw the pedestrians step from the median strip into his lane, the left, he started applying his brakes. It is very difficult for two moving objects to maintain a constant interval between them while traveling the same direction at different speeds.