White v. State

• Decision Date: 30 October 1969
• Docket Number: No. 27,27
• Parties: Carroll Gail WHITE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 51

8 Md.App. 51

258 A.2d 50

Carroll Gail WHITE v. STATE of Maryland.

No. 27.

Court of Special Appeals of Maryland.

Oct. 30, 1969.

Certiorari Denied March 10, 1970.

Gilbert W. Hovermale, Hagerstown, for appellant.

William E. Brannan, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., David K. Poole, Jr., and John B. Wolfkill, State's Atty., and Asst. State's Atty., for Washington County, respectively, on brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH, THOMPSON, JJ.

MORTON, Judge.

The appellant, Carroll Gail White, was charged in a two count indictment with intent to maim and assault and battery in the Circuit Court for Washington County. The charges arose out of appellant's alleged participation in a riot at the Maryland Correctional Training Center, near Hagerstown, Maryland, on April 7, 1968. His motion for judgment of acquittal on the first count was granted and the jury found him guilty of assault and battery.

He first contends that the trial judge committed reversible error by instructing the jury on both counts. Having granted the appellant's motion for a judgment of acquittal on the first count, the trial judge clearly should not have given instructions regarding that count. However, no objection to the instructions was interposed by appellant as required by Md. Rule 756 f, and in the absence of objection an allegation of error in the instructions is not ordinarily reviewable by this Court. As we said in Parker v. State, 4 Md.App. 62, 67, 241 A.2d 185, 188. 'The reason for the rule requiring objection as a prerequisite to appellate review is a salutary one, being designed to afford the trial judge an opportunity to correct inadvertent omissions or inaccuracies in his instructions, where the alleged error is one that might have been readily corrected if it had been called to the trial judge's attention. Bennett v. State, 230 Md. 562, 188 A.2d 142; Canter v. State, 220 Md. 615, 155 A.2d 498; Reynolds v. State, 219 Md. 3129, 149 A.2d 774.' Although Md. Rule 756 g allows this Court to 'take cognizance of and correct any plain error in the instructions, material to the rights of the accused', even though no objection to the instructions was raised, we are of the opinion that the trial judge's erroneous instructions here were not so material to the rights of the appellant as to constitute reversible error.

Appellant's second contention, that he was denied a speedy trial, is without merit. Since no demand was made by the appellant, and he has not shown that he suffered actual prejudice, or even a strong possibility of prejudice, he must, under these circumstances, be deemed to have waived his right to a speedy trial. King v. State, 6 Md.App. 413, 251 A.2d 628; Fabian v. State, 3 Md.App. 270, 283-288, 239 A.2d 100; State v. Long and Nelson,1 Md.App. 326, 230 A.2d 119. Moreover, we find that the five month period between indictment and trial was not, per se, an unconstitutional delay.

We find no merit in appellant's third contention that 'the testimony of Correctional Officer Lieutenant Gerald L. Grimm, was so contradictory that it was incapable of belief * * *.' We have examined the officer's testimony and the inconsistencies, if they may be characterized as such, were inconsequential and would affect only the weight of the evidence which is for the trier of facts to determine. Wilkins v. State, 5 Md.App. 8, 21, 245 A.2d 80.

Appellant finally contends that the lower court erred in denying his motion for a change of venue since 'practically everyone in Hagerstown knows of all activity at the Center.' The docket entries indicate that such a motion was filed and, after hearing, denied. The appellant concedes that the record is silent as to what transpired at the hearing on his motion. It is, however, the responsibility of the appellant to include 'in the record a transcript of all the testimony', Md.Rule 1026 c 2, as well as all other matters and issues which he desires this Court to review on appeal. Moreover, appellant failed to file a motion to correct the record as provided by Md. Rule 1027 b. Under the circumstances, there is nothing in the record before us to support appellant's contention that the lower court abused its discretion in denying a change of venue. See Sizemore v. State, 5 Md.App. 507, 511, 248 A.2d 417.

Judgment affirmed.

ORTH, Judge (dissenting).

The opinion of the Court holds that there was no reversible error here in the trial judge instructing the jury on a crime of which the appellant had been acquitted at the close of the evidence offered by the State. I cannot agree.

Carroll Gail White (the appellant), John Garfield Dunaway, John Frederick Edwards, Gregory Goods, Godfrey S. Hood, Willard Junior Hinton, Leonard John Hythe, Charles Norman Jackson, Ernest Edward Johnson, and Donald Eugene Sanders, all of whom were inmates of the Maryland Correctional Training Center, were jointly indicted, charged under the 1st count with the assault with intent to maim and under the 2nd count with the assault and battery of a correctional officer of the institution. When the indictment came on for trial, Hinton did not appear, being ill. The State entered a nolle prosequi as to Jackson and Johnson and the remaining seven defendants went to trial. The appellant and Hythe elected a trial by jury and the other five chose to be tried by the court. However all seven were tried at the same time. ¹ At the close of the evidence offered by the State the court granted a motion for judgment of acquittal on both counts as to each of Edwards, Goods, Hood, and Hythe. It granted a motion for judgment of acquittal on the first count as to each of Dunaway, Sanders and the appellant. Thus the trial proceeded as to only three of the defendants and only on the assault and battery charge-as to the appellant before the jury and as to Dunaway and Sanders before the court. At the close of all the evidence motion by the appellant and Sanders for judgment of acquittal was denied and the case went to the jury as to the appellant. The verdict of the jury as rendered by them does not appear in the transcript of the proceedings. The docket entry reads: 'Verdict: GUILTY as to defendants, Dunaway, Sanders and White on Second Count Only (Assault); NOT GUILTY on First Count as to all three.'

The record does not disclose a request for instructions. Although the court had granted the motion for judgment of acquittal as to the 1st count, charging assault with intent to maim, at the close of the evidence offered by the State, the court instructed the jury thereon even though it was not before them, as well as on the second count charging assault and battery which was the only offense before them. It said with respect thereto:

'There are two Counts in this Indictment. I will first tell you that Assault that is a common law crime and that it not covered by any definition in our Code of Laws of the State of Maryland, and neither is any punishment provided. The Court of Appeals of Maryland has interpreted a sentence as high as twenty years as not being cruel and inhuman punishment in assault cases. We have no statute.

As to Assault with Intent to Maim, which is the First Count-there are two Counts in this Indictment-Assault with Intent to Maim or Wound and just plain Assault. If any person shall unlawfully shoot at any person or shall in any manner, unlawfully and maliciously attempt to discharge any kind of loaded arms at any person, or shall unlawfully or maliciously stab, cut or wound any person, or shall assault or beat any person with intent to maim, disfigure or disable such person, or with intent to prevent the lawful apprehension or detained every such offender, and every person counselling, aiding or abetting such offender shall be guilty of a felony, and upon (conviction thereof) be punished by confinement in the penitentiary for a period not less than eighteen months nor more than ten years.

Now, that is described to be a Felony. It carries a penalty as high as ten years. And, this First Count would be considered in law to be a more serious offense than the Assault-a common Assault, or simple Assault. Of course, you will have to make the distinction. If you find, after I give you the instructions, I will tell you what the possible verdicts may be. Then, if you were to find that the State has proved beyond a reasonable doubt that the Defendant here was guilty of the First Count, you wouldn't have to answer the Second Count, and the penalty could be a period from eighteen months to ten years. If you found him Not Guilty on the First Count, and Guilty on the Second Count, then it would be up to the Court as to the penalty imposed and that would be anything that the Court would deem fair. We usually determine assault as when somebody threatens to do violent harm, or to apply force to another person. Meaning, if I raise my fist and say, 'I am going to hit you', or if I point a gun at you and say 'I am going to shoot you' or take a knife any say 'I am going to stab...