delivered the opinion of the Court.
Clinton F. Dorsey (appellant) was found guilty of robbery by a jury in the Circuit Court for Harford County.
We do not consider those questions which he presents which go to the denial of a motion for judgment of acquittal made at the close of the evidence offered by the State. We point out again that the rule in this jurisdic *83 tion is that he withdrew the motion by thereafter offering evidence. Maryland Rule 755 b. The remaining questions involve alleged error by the lower court in denying:
I a motion to restrict the testimony of a witness;
II a motion for judgment of acquittal made at the close of all the evidence; and
III a requested instruction.
I
Appellant sought to suppress an anticipаted judicial identification of him as one of the robbers by Mrs. Robert Fletcher, wife of the robbery victim. As we construe the record, and we find verification for our construction in appellant’s brief, a motion to that effect was presented to the court in writing when Mrs. Fletcher was called tо the stand by the State. The only ground stated in the motion, and the only ground for the suppression of the anticipated judicial identification by the witness as disclosed by the record, was that Mrs. Fletcher had been unable to identify appellant at a pretrial lineup in which he appeared.
1
That the prospective identifying witness had not made an identification of appellant at a pretrial confrontation would not render a judicial identification of him by her inadmissible.
Barnes v. State,
Apрellant also contends in the argument in his brief that the court erred in not following the procedure set out in
Smith and Samuels v. State,
The procedure is also invoked when proper challenge is made to an identification made at a pretrial confrontatiоn or viewing of photographs and offered by the State as independent evidence of identification or as corroborative of a judicial identification. Here the State adduced, through the testimony of William P. Van Horn, Deputy Sheriff of Harford County, that Mrs. Fletcher had identified apрellant as one of the robbers at a pretrial viewing of photographs. Appellant made timely objection to this testimony, but he did so only on the ground that the evidence sought was hearsay. The court overruled the objection. On the objection as made there was no need tо receive evidence on the matter out of the presence of the jury. The evidence sought by the State was properly admissible. The rule is that evidence of an identification at a pretrial confrontation or viewing of photographs is admissible as substantive, independent evidence of identification or as corroborative of a judicial identification, not only when received through the testimony of the out of court declarant, but also when received through the testimony of a police officer or some third party observing the extrajudiciаl identification, when the out of court declarant is present at the trial and subject to cross-examination. Smith and Samuels v. State, supra, at 63-64. Mrs. Fletcher was present at the trial and subject to cross-examination. So on the ground advanced by appellant the extra judicial identification challenged was not *86 inadmissible and the court did not err in overruling the objection.
Appellant now suggests that the photographic viewing procedure was illegal. But this issue was not tried and decided below and is not properly before us. Rule 1085. We point out that if the lower court determines that a pretrial confrontation or photographic viewing procedure was illegal, then the exclusionary rules of
United States v. Wade,
We note that here the Deputy Sheriff conducting the photographic viewing procedure described its conduct in detail. We think that on the evidеnce before the lower court it could have properly found that the procedure resulting in the identification of appellant by Mrs. Fletcher from photographs shown her was not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification and that it was legal. Appellant claims that it was illegal because in the book of photographs shown Mrs. Fletcher, photographs of appellant appeared alone on one of the pages. The book was admitted in evidence. It contained photogrаphs of eleven persons, all negroes, each in full face and profile. All the *87 photographs were of the same type and that of appellant was in no way dissimilar to the others. Nor were his physical characteristics in any way remarkable so as to stand out from the оther persons depicted. It is correct that the photographs of the other persons were mounted two to a page, but we do not believe that this alone, in the totality of the circumstances surrounding the procedure, would compel a determination that the proсedure was illegal. The jury could consider that fact in weighing the identification. We could not say, that on the evidence before the trial court, a finding by it that the photographic viewing procedure was legal would be clearly erroneous in any event.
II
The testimony of Mr. and Mrs. Fletcher was sufficient to establish the
corptis delicti
of the robbery as charged and we do not construe appellant’s argument as contending that it was not. We find that their testimony was also sufficient to establish the criminal agency of appellant. Mr. Fletcher made a positive in-court identification of aрpellant as one of the robbers and this would have been sufficient to allow the case to go to the jury on the question of appellant’s criminal agency even without the positive judicial identification of appellant by Mrs. Fletcher.
5
Barnes v. State, supra; Williams v. State,
In the instructions to the jury the court, in explaining the possible verdicts, said that if the jury found the de
*88
fendant guilty of robbery they “need not go any further because all the other offenses merge into that as the more serious offense.” It further explained, “If you find him not guilty of robbery, you cannot find him guilty of assault with intent to rob, because all the evidence has been there has been a taking of property — personal property.” See
Tender v. State,
We have consistently held that the doctrine of merger, which may be applied to avoid multiple convictions at the same trial, does not apply where there is an acquittal of the lesser crime and a conviction of the greater crime at the same trial, or conversely.
Tyler v. State,
Ill
After the court had charged the jury, and out of their presence, defense counsel stated to the court that he had requested the following instruction:
“The jury is instructed that the evidence must either show directly the fact to be proved or support a rational inference of the fact. In a criminal case the facts must be shown, or the inference supported, beyond a reasonable doubt or to a moral certainty, or a rеasonable doubt of the opposite fact must be created. Before a verdict of guilty is justified, the circumstances, taken together, must be inconsistent with, or such as to exclude every reasonable hypothesis or theory of innocence.”
He excepted to the court not giving it as requested.
The court had fully instructed the jury on the presumption of innocence and the burden of proof, correctly stating the applicable law. Language to the effect that “before a verdict of guilty is justified, the circumstances taken together, must be inconsistent with, or such as to exclude every reasonable hypothеsis or theory of innocence” has been approved in the past, but as applicable, in any event, only when the evidence was
solely
circumstantial.
6
It is clear that here the evidence was not solely circumstantial; both the
corpus delicti
and criminal agency of appellant were established by direct evidence. That appellant presented the defense of alibi did not make the evidence adduced against him circumstantial. And in
Metz v. State,
We find that the instructions here given to the jury sufficiently informed them with regard to the suffiсiency of the evidence necessary to convict the appellant and that there was no error in refusing to grant the specific instruction requested.
Judgment affirmed.
Notes
. The motion is included in the record. The transcript merely shows that after Mrs. Fletcher had been sworn and gave her name and addrеss defense counsel told the court he had a motion to offer “prior to Mrs. Fletcher giving any testimony.” The transcript reads:
“(DISCUSSION AT BENCH. ALL COUNSEL PRESENT) THE COURT: Let the record show that a motion was made by the Defendant and denied as to identification.”
The examination of the witness then continued.
. The witnesses were excluded at his request. Rule 753.
. Smith and Samuels was decided 10 February 1969. Appellant’s trial _ commenced 5 March 1969. The procedure is that when the determination of the admissibility of challenged identification evidence is made during a trial before a jury, evidence on the issue shall be received out of the presence of the jury. The burden is on the defendant to show, prima facie, that the pretrial confrontation or viewing of photographs was illegal, and if he so shows, the burden shifts to the State to show by clear and convincing evidence that it was legal. The determination of legality vel non is a matter for the court exclusively. Miller v. State. supra, at 346-348.
. The exclusionary rules are summarized in
Smith and Samuels v. State, supra,
at 65. See also
Palmer v. State,
. Testi de visu, praeponderat aliis, or more emphatically, testis oculatus unus plus valet quam auriti decem.
. We traced the history of this language in
Nichols v. State,