concurring:
I concur in the result reached by the majority. I agree that the trial court erred in its ruling on the admissibility of hearsay evidence and that the error was not harmless. I also agree with the majority that the trial judge should have granted the appellant’s motion for judgment of acquittal at the close of all the evidence on the ground that the evidence, including the hearsay testimony, was legally insufficient to warrant a finding by the jury that the appellant was guilty beyond a reasonable doubt of violating the child abuse statute.
I also agree that where we reverse on the ground of *116insufficiency of evidence, we are bound by the Court of Appeals decision in Gray v. State, 254 Md. 385, (1969), regarding the propriety of accompanying the reversal with an award of a new trial or directions for the entry of a judgment of acquittal. I do not agree with the majority’s dictum, however, that a retrial following a reversal on the ground of insufficient evidence “rests upon firm constitutional grounds” in every case. Where the insufficiency of the evidence results from an erroneous ruling of the trial court excluding material evidence offered by the State, I would agree that the interests of justice may require a retrial to “protect... the societal interest in trying people accused of crime, rather than granting them immunization because of legal error at a previous trial.. ..” United States v. Ewell, 383 U. S. 116, 121 (1966). In the absence of such legal error, however, where the State has had full opportunity to present all the evidence it has against a citizen and has failed in its proof, it would indeed be placing him in jeopardy for the second time to allow the State to have another go at him in the hopes that this time sufficient evidence can be produced to convict him. In my opinion, such a retrial would clearly violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.
In Green v. U. S., 355 U. S. 184 (1957), the Supreme Court of the United States said of the Double Jeopardy Clause, at p.-187:
“. . . The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”
*117I agree with the Appellate Court of Illinois when it said in People v. Brown, 241 N.E.2d 653 (1968), at pp. 659, 663-664:
“Thus, the issue now presented is whether the State should be allowed a second chance to meet its burden of proof in a case in which (1) it had failed to adduce sufficient evidence to support a conviction at the trial, and (2) no material evidence offered by the State had been erroneously excluded or stricken. We are convinced that the State is not entitled to this kind of opportunity to rehabilitate its case at the expense of defendant’s right to acquittal on the evidence which the State did see fit to present.
“A necessary corollary to our conclusion (that the evidence was insufficient to support defendant’s conviction) is that a judgment of acquittal should have been entered by the trial court. Had such a judgment been entered after a trial on the merits, defendant would have been discharged.
“We come to the conclusion, therefore, that a second trial after reversal does constitute a second jeopardy which is, nevertheless, countenanced in some cases because required in the interest of justice. The basic concern of the criminal law in preserving the delicate and difficult balance between the security of the community and the rights of the individual accused, has dictated the rule that a criminal defendant who is successful on appeal may be retried. But this rule should not he applied to all reversals. When a conviction is set aside because of prejudicial occurrences or trial errors, the reviewing court determines only that the accused did not receive the fair trial which was his due; it does not determine that he was entitled to an acquittal. In this type of case, therefore, the security of the community requires retrial. At the same time, the new trial in such a case does not constitute an infringement of the rights of the *118accused because he will then receive the fair trial which had been denied him — precisely the relief to which he is entitled under the circumstances, and, with no exceptions known to us, the relief specifically requested by the appellant.
“On the other hand, when an accused is acquitted at trial, or when his conviction is reversed on appeal because of the insufficiency of the evidence, the results are the same so far as his relationship with society is concerned. He cannot reasonably be deemed a continuing danger to the community in one instance and not in the other. These extremes in result should not be left to the fortuitous circumstance of what court it is which decides that there was not enough evidence to establish his guilt. Here, therefore, the balance is seen to be tipped the opposite way, since there can be no infringement of the right to community security when the defendant is released on this ground by either court, whereas, in our opinion, his right against double jeopardy would be denied equally by a retrial order in either court.
“The reason for the reversal should thus control the decision as to whether or not there should be another trial.” (Emphasis added).
I think the reasons given for acquittal in People v. Brown, supra, apply with equal force to the case at bar and, were it not for our duty to follow the mandate of Gray v. State, supra, I would for those reasons alone vacate the judgment below and direct the entry of a judgment of acquittal.
Applying Gray to the instant case, as we are bound to do, I find that “the record indicates that no additional probative evidence can be . . . adduced” by the State. The majority appears to agree with this, for it opines that “even if all the hearsay evidence that was adduced below had been admissible, and even if that ‘additional probative evidence’ which would appear to be available upon retrial were to corroborate it, we still find it insufficient to sustain the *119conviction”. Although the majority refers to the “additional” evidence as “probative”, it finds such evidence “insufficient” to sustain the conviction even when added to the evidence produced at the first trial. To me this is a contradiction in terms. Black’s Law Dictionary (Revised Fourth Edition, 1968), defines “Probative” as follows:
“In the law of evidence. Having the effect of proof; tending to prove, or actually proving.
“Testimony carrying quality of proof and having fitness to induce conviction of truth, consisting of fact and reason co-operating as co-ordinate factors [Citation omitted]”.
“Probative Facts” is defined in the same work thusly:
“In the law of evidence. Facts which actually have the effect of proving facts sought; evidentiary facts. 1 Bench Ev. 18. Matters of evidence required to prove ultimate facts [Citation omitted]”.
If the “additional” evidence that the record indicates may be adduced at a retrial is “probative” (i.e., has “the effect of proof’ or “tends to prove” elements of the crime) then it would seem that such evidence is sufficient to make a jury issue of the crucial question of guilt. If the “additional” evidence is not “probative” then it is not sufficient to submit to a jury. In the present case, I agree with the majority that the “additional” evidence likely to be produced at a retrial is not sufficient to warrant submission to a jury. To repeat, “the record indicates that no additional probative evidence can be . . . adduced”. Consequently, under Gray’s mandate, “the entry of a judgment of acquittal should be directed”. Gray v. State, supra, at 397. To reach this result it is not necessary, as the majority seems to think it is, to weigh all the evidence to determine “the probability of guilt” — a process I find foreign to the appellate function.