concurring:
I disagree with the route taken by the majority to affirmance of the judgment below, but concur in that result.
I am persuaded that a due respect for the course followed by this Court in Moore v. State, 7 Md. App. 330, 254 A. 2d 717 (1969), coupled with the manifest propriety of the conduct of the trial in the lower court, combine to justify us in reaching and rejecting appellant’s substantive contention on appeal. We should not, under the circumstances of this case, utilize Maryland Rule 1085 as a basis for affirmance.
Maryland Rule 1085, applicable to this Court, is essentially identical1 to Maryland Rule 885, applicable to the Court of Appeals of Maryland. In Walters v. State, 242 Md. 235, 218 A. 2d 678 (1966), Judge Barnes, after pointing out .that three issues on appeal were not raised below and thus were not properly before the Court, went on to say at 238 [681]: “As these issues might be raised in a post *467conviction proceeding, we will dispose of them now in anticipation of a possible later collateral attack on the conviction.” We should follow precisely such a course here.
Instead, we have chosen to repudiate the procedural action taken by us in Moore v. State, supra, without guidance to a post conviction tribunal as to Moore’s substantive impact, if any, upon the subject case.
Appellant contends:
“The court below erred in finding Appellant guilty without first affording Appellant the right to argue the merits of his case.”
I think his case had no merits to argue save for mitigation of punishment, the accused having waived his right to argument by counsel upon the issue of guilt or innocence. Both counsel and accused were accorded the right to speak in mitigation.
Appellant’s reliance upon Herring v. New York, 422 U. S. 853, 45 L.Ed.2d 593, 95 S. Ct. 2550 (1975); Yopps v. State, 228 Md. 204, 178 A. 2d 879 (1962); and Moore v. State, supra, is misplaced. There is no necessity to retreat in any respect from the holdings in that trilogy of cases. It is plain that the subject case is beyond the range of their impact.
Herring, Yopps and Moore, all supra, in unison imperatively declare that argument of counsel is a fundamental arrow in the full quiver of rights conferred by the Sixth Amendment’s assurance of the assistance of counsel. This is not to say, however, that the accused may not withdraw this fundamental arrow from its quiver and waive its use.
A common thread running through this trilogy of cases is the existence in each of disputed facts requiring resolution by the trier of facts. See Herring, supra, at 856 [597] [2552]; Yopps, supra, at 206 [880]; and Moore, supra, at 331 [718],
A second common thread running through all three is clear recognition of the right of the trial judge to restrict argument to the issues of the particular case. In Herring, supra, it was said: “The presiding judge must be and is given *468great latitude in controlling the duration and limiting the scope of closing summations.” (Emphasis added.) 422 U. S. at 862, 45 L.Ed.2d at 600, 95 S. Ct. at 2555.
In Yopps, supra, it was said: “The constitutional right of a defendant to be heard through counsel includes his right to have his counsel make a proper argument on the evidence and the applicable law in his favor however simple, clear, unimpeached and conclusive the evidence may seem unless he has waived his right to such argument, or unless the argument is not within the issues of the case. ...” (Emphasis added.) 228 Md. at 207, 178 A. 2d at 881.
In Moore, supra, it is plain that its rule was limited to “an opportunity to argue the merits of the case.” (Emphasis added.) 7 Md. App. at 332, 254 A. 2d at 718.
The purpose of argument on the issue of guilt or innocence is to direct the eye and the mind of the court or jury to evidence favorable to the accused; to suggest the invalidity or inadequacy of evidence against the accused; to point out missing elements of proof; or to direct attention of the trier of facts to applicable law favorable to the accused.
In the subject case the trial judge very carefully informed and advised the accused: of his right to a jury trial; of his right to confront the witnesses against him; of his right to freedom from compulsory self-incrimination and the concomitant attributes of that right. He pointed out that the facts agreed upon would be considered by the court to be true and went on to make crystal clear that he would not accept an “agreed statement of facts” if the accused entered any caveat upon it. The appellant entered none, and acknowledged complete understanding of his explained rights.
Appellate counsel have not undertaken to enlighten us as to the nature of permissible argument on an issue of guilt or innocence under the admitted facts. They have been content simply to declare that “this Court should not speculate that there may be none.”
I do not find the agreed facts to give rise to any speculation. They unequivocally establish both the corpus *469delicti of the offense charged and the criminal agency of the appellant.
Counsel for appellant rely upon the conceded rule that presuming constitutional waiver from a silent record is impermissible. Carnley v. Cochran, 869 U. S. 506, 8 L.Ed.2d 70, 82 S. Ct. 884 (1962); Moore v. State, supra.
This is not a silent record. 1 am persuaded that the express waivers set forth in detail in the majority opinion, coupled with all other circumstances of this case, make it plain and clear that the right to argument by counsel upon the issue of guilt or innocence was knowingly and intelligently waived. This record demonstrates a classic example of a knowing, intelligent, voluntary waiver, express and by conduct, of the right to argument by counsel upon the issue of guilt or innocence.
In Carnley v. Cochran, supra, the Supreme Court said:
“. . . we recognized in Rice v. 01soni2lthat, although the Fourteenth Amendment would not countenance any presumption of waiver from the appearance of the accused without counsel and the silence of the record as to a request, the entry of the guilty plea might have raised a fact issue as to whether the accused did not intelligently and understandingly waive his constitutional right.” 369 U. S. at 515, 8 L.Ed.2d at 77, 82 S. Ct. at 890.
Wayne v. State, 4 Md. App. 424, 431, 243 A. 2d 19, 24 (1968), recognized that there may be circumstances where the conduct of the accused is so plain and clear as implicitly to demonstrate a knowing and intelligent waiver of the right to counsel. See also State v. Zimmerman, 261 Md. 11, 23, 273 A. 2d 156, 162 (1971); State v. Panagoulis, 3 Md. App. 330, 339, 239 A. 2d 145, 151 (1967).
Judge Mason has authorized me to state that he concurs in the views herein expressed.
. The two rules are identical in every respect except that the words “circuit court” are used in 885 with the words “lower court” used in 1085.
. Rice v. Olson, 324 U. S. 786, 89 L. Ed. 1367, 65 S. Ct. 989 (1945).