dissenting:
It seems a shame that quite a number of criminal trials must be needlessly retried simply because I am unable to persuade at least one of my colleagues to see what appears to me to be a very simple proposition, which is: there is nothing in Md. Rule 735 d or in Countess v. State, supra, that requires any mention of reasonable doubt when the meaning of a jury trial is explained to an accused. Inasmuch as an accused’s guilt must be proved beyond a reasonable doubt, whether the trial is before the court or before the jury, this language can be omitted without a violation of either the literal language or the purpose of the rule.
It should be noted that in the majority’s first quote from Countess, the Court was simply explaining what was contained in the waiver form set out in § b of the Rule; the writer, Judge Charles E. Orth, Jr., himself said there was no intention to add anything to the Rule. Nor does the second quote from Countess support the majority’s position. The Fairbanks case cannot be equated with the instant case because in that case there was no explanation whatsoever as to the meaning of a jury trial; the accused simply stated that he knew what a jury trial was.
I would affirm the judgment below.