dissenting in part, filed the following dissenting opinion.
The majority of this Court, in affirming the conviction of Harold Edward Shockley (the defendant or Harold) of murder in the first degree, based its conclusion on the fact that the trial court was not clearly wrong when it found there was sufficient evidence, or inferences from evidence, to support the finding that Harold participated in the attempted robbery of Sarah Hearne (the victim).
I agree with the majority that the evidence was sufficient to sustain the conviction of the younger brother, Leonard Melvin Shockley (Leonard), of murder in the first degree for the killing of the victim in an attempt to perpetrate a robbery or a rape, but I cannot agree that the evidence was legally sufficient for the trial court to have found Harold guilty of murder in the first degree.
The trial court, in announcing its verdict, stated that it believed the two brothers had discussed their plans on the way from Snow Hill to Boxiron and what they were going to do when they got there; and that Harold, as well as Leonard, knew they were going to Boxiron with criminal intent—certainly with intent to rob, and possibly with an intent equally as bad or perhaps worse. The court was unable to accept the statement of the older brother that he went in the store with the sole purpose of preventing the younger brother from committing a crime. In sentencing Harold, although the court was satisfied of his guilt under the provisions of Code (1957) Art. 27, § 410, it was not satisfied that he had participated in the actual killing of the victim or knew the killing was to take place, and for that reason sentenced him to life imprisonment instead of death.
Maryland Rule 741 c provides that when a criminal charge has been tried by the court instead of a jury, this Court, upon appeal, may review both the law and the evidence to determine whether in law the evidence is sufficient to sustain the conviction. The rule also provides that the verdict of the trial court shall not be set aside on the evidence unless it is clearly erroneous, and due regard must always be given to *499the opportunity of the trial court to judge the credibility of the witnesses. But if there is no evidence, upon which the trial court could find a defendant guilty, then it is the duty of this Court to rule that the lower court was wrong, and set the verdict aside. What then is the state of the record in this case?
Harold concedes that the credibility of the witnesses is not involved. He insists, however, that, if the testimony of every witness in the case, which was properly in evidence, is accepted as true, it is still not sufficient to convict him of murder. He further says that the trial court, in applying the established rules of law, could not have been fairly convinced, beyond a reasonable doubt, of his guilt. I agree.
Other than the statement made by Leonard in his confession taken out of the presence of Harold—that he and his brother planned to rob the victim and that both had attacked her for that purpose—which the trial court properly ruled was not admissible in evidence against Harold (Peters and Demby v. State, 187 Md. 7, 48 A. 2d 586 [1946] ; Markley v. State, 173 Md. 309, 196 A. 95 [1938])—there is no evidence that the brothers had planned a robbery on the way to Boxiron. Since the trial court found Harold guilty under the provisions of Art. 27 § 410, supra,—which provides, in part, that “[a] 11 murder which shall be committed in the perpetration of, or attempt to perpetrate, any * * * robbery * * * shall be murder in the first degree”—the real question is whether there was any evidence, or inferences from evidence, from which the court could properly conclude that Harold participated in the attempt to perpetrate a robbery.
The majority opinion states that the “evidence would at least support an inference that Harold knew of, and actively participated in, an attempt to rob by forcing the cash register.” The State Police testified that the cash register had been tampered with and was jammed, but other than the fact that Harold was present at the scene of the crime there was no evidence to prove that he had participated in the attempt to rob any more than he had participated in the actual killing of the victim. As stated, there is evidence that Harold was at the scene. He knew a crime was being committed and *500did nothing to stop it. He fled the scene in haste without notifying anyone that a crime had been committed. And, in his flight by a devious route, he discarded his blood-stained clothing. But none of these, standing alone or collectively, is sufficient to show that Harold participated in the attempt to perpetrate robbery.
Although the presence of Harold at the scene of the crime was one of the factors the court was entitled to consider in arriving at its verdict, his mere presence there did not in itself make him a principal or an accomplice. Judy v. State, 218 Md. 168, 146 A. 2d 29 (1958); Watson v. State, 208 Md. 210, 117 A. 2d 549 (1955); 2 Wharton, Criminal Evidence § 451 (12th ed. 1955). In Levering v. Commonwealth, 132 Ky. 666, 117 S. W. 253, 257 (1909), it was said:
“Mere presence or acquiescence in, or silent consent to, is not, in the absence of a duty to act, legally sufficient, however reprehensible it may be, to constitute one a principal, or an accessory, or an aider and abettor, or an accomplice * *
See also 1 Underhill, Criminal Evidence § 16 (5th ed. 1956) ; State v. Tippett, 244 Iowa 1350, 60 N. W. 2d 538 (1953); State v. McComas, 85 Mont. 428, 278 P. 993 (1929) ; Gower v. State, 166 Ga. 500, 143 S. E. 593 (1928); State v. Altwatter, 29 Idaho 107, 157 P. 256 (1916); People v. Hrdlicka, 344 Ill. 211, 176 N. E. 308 (1931); Hicks v. State, 126 Tenn. 359, 149 S. W. 1055 (1912).
One who witnesses a crime and does nothing to stop it is not guilty of the crime committed unless he knowingly, voluntarily, and with common criminal intent with the principal offender, participates in the commission thereof, or in some way advocates or encourages its commission. 2 Wharton, Criminal Evidence § 448 (12th ed. 1955); Coleman v. State, 209 Md. 379, 121 A. 2d 254 (1956) ; Watson v. State, supra, at p. 219, and the cases therein cited. In the Coleman case we said at p. 385:
“The term ‘accomplice’ does not include a person who has guilty knowledge, * * *. To constitute one *501an accomplice, he must perform some act or take some part in the commission of the crime or owe some duty to the person in danger that makes it incumbent on him to prevent its commission.”
Harold’s flight from the scene was a circumstance to be considered against him in connection with other evidence tending to show guilt. Clay v. State, 211 Md. 577, 128 A. 2d 634 (1957). The movements made by an accused between the time the crime was committed and the time of the arrest are always important as reflecting upon the accused’s culpability vel non. McCleary v. State, 122 Md. 394, 89 A. 1100 (1914); Cothron v. State, 138 Md. 101, 113 A. 620 (1921); Chisley v. State, 202 Md. 87, 95 A. 2d 577 (1953). But flight, in and of itself, is not conclusive. People v. Sanchez, 35 Cal. App. 2d 231, 95 P. 2d 169 (1939); Hilson v. State, 101 Tex. Cr. 449, 276 S. W. 272 (1925). It is not even prima facie evidence of guilt. United States v. Greene, 146 F. 803 (D. C. Ga. 1906), affirmed 154 F. 401, 85 C. C. A. 251 (1907), cert. den. 207 U. S. 596 (1907). Moreover, flight, standing alone, is not sufficient to support a conviction. 1 Underhill, Criminal Evidence § 16 (5th ed. 1956) ; Howard v. State, 182 Miss. 27, 181 So. 525 (1938) ; State v. Adams, 191 N. C. 526, 132 S. E. 281 (1926) ; State v. Marasco, 81 Utah 325, 17 P. 2d 919 (1933); Duty v. Commonwealth, 137 Va. 759, 119 S. E. 62 (1923).
Finally, there was Harold’s deliberate attempt to suppress the tell-tale evidence of his presence at the scene or participation in the crime furnished by his blood-stained clothing, which he discarded at several points along the route his brother took to get home. Like the flight of the accused this fact was also a circumstance, which, although not conclusive, could be considered a link in the chain of circumstantial evidence showing guilt. 23 C. J. S. Criminal Law § 907a. But, also like flight, the discardation of his clothing is but another circumstance which is neither conclusive nor prima facie evidence of guilt, and is insufficient, in and of itself, to support a conviction.
The only evidence against Harold was circumstantial. Of course, there was direct evidence, which Harold did not deny, *502that he was present at the scene of the crime, but there was no direct evidence that he participated in the attempt to rob or rape or the actual killing, so that his presence at the scene was but another circumstance from which an inference could be drawn. When such circumstantial facts as were present in this case—consisting of presence at the scene, knowledge of the commission of a crime, flight from the scene and the suppression of tell-tale evidence—can be reconciled either with the theory of innocence or with the theory of guilt, the theory of innocence must prevail and a conviction cannot be sustained. 23 C. J. S. § 907c, supra. See also Shelton v. State, 198 Md. 405, 84 A. 2d 76 (1951). Under the evidence in this case Harold could have been present to prevent commission of the crime or present to participate in it. When he saw his brother cut the throat of his victim he could have been stricken dumb and powerless to act or he could have been advocating or encouraging the act. When he fled he could have been fleeing because he was horrified or frightened at what he had witnessed or he could have been fleeing to avoid arrest. And when he discarded his clothing while in flight he could have been trying to rid himself of the taint of feloniously spilled blood or he could have ‘been trying to suppress evidence of his presence or participation in the crime. Inasmuch as the facts are as consonant with innocence as they are with guilt, Harold should not have been convicted under the evidence in this case.
In 1 Underhill, Criminal Evidence § 17 (5th ed. 1956), it is said:
“Circumstantial evidence which merely arouses suspicion or gives room for conjecture is insufficient. It must do more than raise the mere possibility or even the probability of guilt. It must afford the basis for an inference of guilt beyond a reasonable doubt.”
See the rule laid down in the memorandum on motion for reargument in Edwards v. State, 198 Md. 132, 81 A. 2d 631 (1951), at p. 157, for meeting the test of the legal sufficiency of evidence in both civil and criminal cases.
*503There is no doubt that a conclusion of guilt may be based on a reasonable deduction or inference drawn from the facts and circumstances proved or admitted. Such facts and circumstances, however, must not only be consistent with guilt, but must be wholly inconsistent with innocence. Commonwealth v. Bardolph, 326 Pa. 513, 192 A. 916 (1937). Moreover, if there is a hypothesis of innocence, there must be an acquittal, even though an inference of guilt is also possible. State v. Bulna, 46 N. J. Super. 313, 134 A. 2d 738 (1957).
Since the record is devoid of evidence, and inferences from evidence, upon which the trial court could have found Harold guilty of murder beyond a reasonable doubt, I am convinced that the judgment as to him should have been reversed and the case remanded for a new trial.