Canter v. State

• Decision Date: 18 November 1959
• Docket Number: No. 54,54
• Citation: 155 A.2d 498,220 Md. 615
• Parties: Herbert CANTER, Jr., James J. Canter, v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 615

220 Md. 615

155 A.2d 498

Herbert CANTER, Jr., James J. Canter, v. STATE of Maryland.

No. 54.

Court of Appeals of Maryland.

Nov. 18, 1959.

Joseph A. DePaul, Hyattsville, for appellants.

Shirley Brannock Jones, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., and William L. Kahler, State's Atty. for Prince George's County, and Frank P. Flury, Deputy State's Atty. for Prince George's County, Upper Marlboro, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HENDERSON, Judge.

The appellants were tried on a joint indictment charging larceny of a motor vehicle (in three counts), convicted on the first count and sentenced to 18 months imprisonment. The only question raised on appeal is an alleged omission in the court's charge to the jury. The trial judge told the jury that his instructions were given 'in an advisory capacity as to the law'. He also told them, in outlining the possible verdicts, that they should determine guilt or innocence, and stressed the fact that he used the word 'may' and not 'must' in connection with possible findings. The appellants contend that the court committed reversible error in failing to instruct that the jury were the 'final' judges of the law.

Article XV, sec. 5, of the Constitution of Maryland provides, in part, that in criminal cases 'the Jury shall be the Judges of Law, as well as of fact'. There is nothing in the record to show a violation of this provision. We have held that an instruction that the court's instructions as to the law are advisory is a substantial compliance with the constitutional mandate. Gibson v. State, 204 Md. 423, 441, 104 A.2d 800. In the instant case there is no suggestion that the court attempted to usurp the jury's function, or to prevent counsel from arguing that the general principles stated by the court were incorrect. Indeed, it is virtually conceded that they were correct.

The appellants contend, however, that the charge was not in literal compliance with Maryland Rule 739 b, which provides: '* * * The court shall in every case in which instructions are given to the jury tell the jury that they are themselves the final Judges of the Law and that the court's instructions are advisory only.' They argue that the Rule requires that the jury be told both, that they are the 'final Judges', and that the instructions are 'advisory only', although it is not suggested that there is any difference in the meaning of the two expressions, and we perceive none. It should be noted that this contention is not based upon a deprivation of constitutional right, but upon a contention that the Rule, as construed, is mandatory, and not redundant, and confers a right beyond that required by the Constitution. Cf. Hill v. State, 218 Md. 120, 127, 145 A.2d 445.

The record is clear that at the conclusion of the charge, counsel then representing the accused indicated that he was satisfied with the charge as given and had no objections thereto. We think this amounted to a waiver of any contention as to non-compliance with the Rule. Hill v. State, supra, is distinguishable in that Rule 723 c, there considered, required that the record show compliance affirmatively, precluding as was there stated, any inference of a waiver of the right to be advised as to a right to counsel. We have repeatedly held that even constitutional rights may be waived in the course of a trial. Jordan v. State, 219 Md. 36, 43, 148 A.2d 292; Reynolds v. State, 219 Md. 319, 324, 149 A.2d 774, (distinguishing Wolfe v. State, 218 Md. 449, 146 A.2d 856); Jackson v. Warden, 218 Md. 652, 655, 146 A.2d 438; Briley v. State, 212 Md. 445, 448, 129 A.2d 689; Schanker v. State, 208 Md. 15, 21, 116 A.2d 363; Heath v. State, 198 Md. 455, 464, 85 A.2d 43. See also Beard v. State, 216 Md. 302,...