Dimery v. State

338 A.2d 56, 274 Md. 661

• Court: Court of Appeals of Maryland
• Decided: June 5, 1975
• Docket: [No. 161, September Term, 1974.]
• Status: Published

Opinions

Smith, J.,

delivered the opinion of the Court. Digges and O’Donnell, JJ., dissent and O’Donnell, J., filed a dissenting opinion in which Digges, J., concurs at page 679 infra.

Petitioner, Thomas Henry Dimery, III (Dimery), was convicted by a Prince George’s County jury of the crimes of rape, attempted murder, assault and battery, and arson. He was sentenced to life imprisonment for rape, to concurrent terms of 20 years each for arson and attempted murder, and to a concurrent term of one year for assault and battery. The Court of Special Appeals affirmed the convictions in an unreported per curiam opinion, No. 826, September Term, 1972, filed September 13, 1973. We granted Dimery’s petition for the writ of certiorari confined “solely to the question whether the trial court could impose a sentence of life imprisonment on petitioner’s conviction for rape where the trial court had failed to instruct the jury that it could limit the penalty by rendering a verdict without capital punishment . ...” We shall decide the matter adversely to Dimery.

Maryland Code (1957) Art. 27, § 461 provides that “[e]very person convicted of a crime of rape . . . shall, at the discretion of the court, suffer death, or be sentenced to confinement in the penitentiary for the period of his natural life, or undergo a confinement in the penitentiary for not less than eighteen months nor more than twenty-one years . . . .” The only revision in this section from the time of its enactment by Chapter 138, § 4, of the Acts of 1809 to the present time was the addition by Chapter 284 of the Acts of 1935 of the language “or be sentenced to confinement in the penitentiary for the period of his natural life.”

By Chapter 22 of the Acts of 1949 there was added to the Maryland statutes what is now Code (1957) Art. 27, § 463, providing in pertinent part:

“The jury which finds any person guilty of rape under § 461 of this subtitle . . . may add to their verdict the words ‘without capital punishment,’ in which event the sentence of the court shall not exceed twenty years in the penitentiary; and in no such case in which the jury has returned a verdict including the words ‘without capital punishment’ shall the court in imposing sentence, sentence the convicted person to pay the death penalty or to be confined in the penitentiary for more than twenty years.”

The trial in this case concluded on July 21, 1972, a few weeks after the decision of the Supreme Court of the United States in Furman v. Georgia, 408 U. S. 238, 92 S. Ct. 2726, 33 L.Ed.2d 346 (1972), held by us (after the trial in this case) in Bartholomey v. State, 267 Md. 175, 297 A. 2d 696 (1972), to have proscribed the death penalty as it then existed under Maryland statutes.

We held in England and Edwards v. State, 274 Md. 264, 334 A. 2d 98 (1975), that § 463 remained viable after Furman, that when read together with § 461 it reveals a legislative intent that the words “without capital punishment” are to prevent not only the death penalty, but also life imprisonment, and that whenever a jury qualifies its verdict by adding those words, the punishment is not to exceed 20 years imprisonment.

Dimery was on trial not only for rape, assault and battery, arson, and attempted murder, of which he was convicted, but also for grand larceny. At the outset of his instructions to the jury the trial judge advised the jurors that he would “give [them] in [his] own handwriting each of th[o]se counts and possible verdicts as to each and every one prior to [their] going in the jury room so that [they would] know specifically what the defendant [was] charged with as to each count and the possible verdicts that could apply to those counts.” He also referred to a special issue relative to sanity and advised that there was a place for the foreman to check “Yes” or “No” on that issue after the jury had made its determination. The jury was fully instructed. Counsel were asked if they had any exceptions or requests for additional instructions. There was an exception, not here relevant, and a request for an additional instruction, which was granted. No inquiry was made of the court as to the proposed form of verdict nor was any exception taken on that subject. Counsel then proceeded to argue the case before the jury. After argument the court instructed the jury relative to the form of its verdict, stating in pertinent part:

“Criminal Trials 11,565, Count 1 is the crime of rape; possible verdict is either guilty or not guilty.”

This was in accordance with the memorandum in the trial judge’s “own handwriting [as to] each of these counts and possible verdicts as to each and every one,” to which reference has previously been made. No exception was taken. Likewise, there was no request for an additional instruction.

Under Maryland Rule 756 g, “the particular omission [in the instructions] . . . [not having been] distinctly objected to before the jury retired to consider its verdict and . .. the grounds of objection [not having been] stated at that time,” we take cognizance of the matter only if we conclude that this constituted “plain error in the instructions, material to the rights of the accused ... .” As may be expected, Dimery says this is plain error and the State says it is not.

Dimery relies upon Rowe v. State, 234 Md. 295, 199 A. 2d 785 (1964); Colton v. People of the Territory of Utah, 130 U. S. 83, 9 S. Ct. 435, 32 L. Ed. 870 (1889); Webb v. State, 154 Ark. 67, 242 S. W. 380 (1922); Vickers v. United States, 1 Okla. Crim. 452, 98 P. 467 (1908); Commonwealth v. Madaffer, 291 Pa. 270, 139 A. 875 (1927); and State v. Chaney, 117 W. Va. 605, 186 S. E. 607 (1936). We regard each of those cases as legally and factually inapposite.

In Rowe the defendant was on trial for murder. As Judge Horney put it for the Court:

“The primary questions posed by this appeal arise out of the acceptance by the trial court of the jury verdict of ‘not guilty of murder in the first degree but guilty of murder in the second degree’ on the issue of guilt or innocence despite the fact that the jury had found on the issues of sanity and insanity that the defendant was insane at the time of trial (‘insane now’) in addition to also finding that he was sane at the time of the offense (‘sane then’).” (First and second emphasis added.) Id. at 297.

At page 300 of 234 Md. the Court’s opinion pointed out that among the exceptions interposed to the trial court’s instructions was one on the precise ground precipitating the reversal by this Court, that “the court failed to inform the jury that it should not return a verdict on the indictment if it should find the defendant sane then and insane now on the issues.” (Emphasis in this Court’s opinion.) Rowe did not press this point on appeal. The Court said at page 301, “The reasons for these omissions are clear. On instructions from the defendant, court-appointed appellate counsel refrained from presenting any question which might bring about a reversal and a new trial. For reasons best known to himself, the defendant seems to fear the risk of another trial.” The only issues presented on appeal were those which would have had the effect of releasing Rowe from custody or reducing the time of his incarceration had there been a reversal. Over the strong dissent of Chief Judge Bruñe and Judges Henderson and Hammond, the Court took cognizance of the sanity issue. As Judge Henderson put it for the dissenters, the point was open to the “serious objection .. . that it decides the case on a question not presented and on a proposition not advocated by either side.” The reasoning behind the majority’s taking cognizance of the point was, as Judge Horney put it for the Court:

“The failure of the trial court to advise the jury that it should not return a verdict on the indictment if it found the defendant insane at the time of trial, as well as the acceptance of the verdict when the court knew that the jury had determined that the defendant was insane at that time, raises a vital question as to whether certain aspects of the trial were valid.” Id. at 302.

The peculiar circumstances under which the majority took cognizance of the point raised in the trial court but not raised on appeal, the reverse of the situation now before us, was pointed out when the Court said at page 309 that “neither the counsel for the defendant, nor the Attorney General, nor those members of this Court who do not agree with the majority, pointed out a single case in which it has been held that a defendant who is insane should be tried for a criminal offense.” The Court was faced with a finding of fact by the trier of fact, the jury in that instance, that the defendant was insane at the time of trial.

In Calton the defendant was convicted of murder in the first degree in the then Territory of Utah. As Mr. Justice Harlan put it for the Court, “the authority given [by the territorial statute] to substitute imprisonment at hard labor in the penitentiary for life for the penalty of death, when the accused is found guilty of murder in the first degree, depends upon a previous recommendation to that effect by the jury. Without such recommendation the court, in the absence of sufficient grounds for a new trial, has no alternative but to sentence the accused to suffer death.” (Emphasis added.) The trial court in that instance failed to instruct the jury relative to the statute. The reversal by the Supreme Court was placed upon statutory grounds, not the due process grounds here urged by Dimery. Mr. Justice Harlan said for the Court:

“If [the jury’s] attention had been called to that statute, it may be that they would have made such a recommendation, and thereby enabled the court to reduce the punishment to imprisonment for life. We are of opinion that the court erred in not directing the attention of the jury to this matter. The statute evidently proceeds upon the ground that there may be cases of murder in the first degree, the punishment for which by imprisonment for life at hard labor will suffice to meet the ends of public justice. Its object could only have been met through a recommendation by the jury that the lesser punishment be inflicted; and it is not to be presumed that they were aware of their right to make such recommendation. The failure of the court to instruct them upon this point prevented it from imposing the punishment of imprisonment for life, even if, in its judgment, the circumstances of the case rendered such a course proper.” Id. at 32 L. Ed. 871-72.

The hands of the trial judge were not so tied in sentencing Dimery. With the verdict of guilty he was permitted to give a life sentence or a sentence ranging from 18 months to 21 years.

In the cases of Webb, Vickers, Madaffer, and Chaney the decisions were based on the fact that state law required the trial judge to instruct the jury that the jury could limit the defendant’s punishment by a qualified verdict. Unlike the situation prevailing in Maryland prior to Barthobmey, the trial court in each of those cases had no discretion. It was required to sentence to death in the absence of the recommendation of a jury against that penalty.

In People v. Gonzales, 187 Cal. App. 2d 769, 10 Cal. Rptr. 12 (Dist. Ct. App., 3rd Dist. 1960); Ferguson v. State, 90 Fla. 105, 105 So. 840 (1925); Penn v. State, 62 Miss. 450 (1884); and State v. Adams, 68 S. C. 421, 47 S. E. 676 (1904), no request for an instruction was made on behalf of counsel for the accused and the courts refused to review omissions to instruct the jury as to the right to limit the sentence or to find the accused guilty of a lesser included offense.

In Canter v. State, 220 Md. 615, 617, 155 A. 2d 498 (1959), Judge Henderson pointed out for this Court that “[w]e have repeatedly held that even constitutional rights may be waived in the course of a trial,” citing Jordan v. State, 219 Md. 36, 43, 148 A. 2d 292, cert. denied, 361 U. S. 849 (1959); Reynolds v. State, 219 Md. 319, 324, 149 A. 2d 774 (1959), distinguishing Wolfe v. State, 218 Md. 449, 146 A. 2d 856 (1958); Jackson v. Warden, 218 Md. 652, 655, 146 A. 2d 438 (1958), cert. denied, 359 U. S. 917 (1959); Briley v. State, 212 Md. 445, 448, 129 A. 2d 689 (1957); Schanker v. State, 208 Md. 15, 21, 116 A. 2d 363 (1955); and Heath v. State, 198 Md. 455, , 85 A. 2d 43 (1951). To this list could be added Giles v. State, 229 Md. 370, 387, 183 A. 2d 359 (1962), appeal dismissed, 372 U. S. 767 (1963), and Lenoir v. State, 197 Md. 495, 80 A. 2d 3 (1951). This is in accordance with the holding of the Supreme Court of the United States in Michel v. Louisiana, 350 U. S. 91, 76 S. Ct. 158, 100 L. Ed. 83 (1955), which was quoted by this Court in Jordan v. State, 221 Md. 134, 141, 156 A. 2d 453 (1959), cert. denied, 361 U. S. 972 (1960), and Dillon v. White’s Ferry, Inc., 268 Md. 118, 121, 299 A. 2d 785 (1973). Michel was relied upon in Smith v. State, 240 Md. 464, 472, 214 A. 2d 563 (1965). In Michel, 350 U. S. at 99, the Court quoted Yakus v. United States, 321 U. S. 414, 64 S. Ct. 660, 88 L. Ed. 834 (1944). In the latter case the Court said:

“No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right ... .” Id. at 444.

In Smith v. State, supra, Judge Oppenheimer listed for this Court some of the various constitutional rights that defendants had previously been deemed to have waived:

“We have consistently held that a defendant in a criminal proceeding may waive even a constitutional provision which applies in his favor. Matters which we have held to have been waived include the questioning of prospective jurors on voir dire, Lenoir v. State, 197 Md. 495, 80 A. 2d 3 (1951); the constitutionality of the statute under which the defendant was tried, Martin v. State, 203 Md. 66, 98 A. 2d 8 (1953); specific findings by the jury of convictions of prior offenses in a narcotics case, Beard v. State, 216 Md. 302, 140 A. 2d 672 (1958); the right to a free transcript of the trial for use in appeal, Jackson v. Warden, 218 Md. 652, 146 A. 2d 438 (1958); the right to a separate trial, Young v. State, 228 Md. 173, 179 A. 2d 340 (1962); the voluntariness of a confession, Prescoe v. State, 231 Md. 486, 191 A. 2d 226 (1963) and Fisher v. State, 233 Md. 48, 194 A. 2d 824 (1963); the right to a speedy trial, Keyes v. State, 236 Md. 74, 202 A. 2d 582 (1964); and the right to court-appointed counsel, Palacorolle v. State, 239 Md. 416, 211 A. 2d 828 (1965). In Williams v. Warden, 240 Md. 205, 213 A. 2d 579 (1965), we held that the systematic exclusion of Negroes from the array of jurors could be waived.

“It is conceded by Smith’s counsel that his waiver of the defectiveness of the indictment was made freely and knowingly. Having waived the issue before trial, he cannot withdraw the waiver after his conviction.” Id. 240 Md. at 480.

Accordingly, if Dimery had a constitutional right to have the jury instructed as to their statutory right to return a qualified verdict, he could waive or forfeit that right by failing to make a timely objection to the trial judge’s instructions, just as he could waive the right by electing a court trial.

Closely akin to the case at bar is that of Jones v. State, 182 Md. 653, 35 A. 2d 916 (1944). Jones was convicted of first degree murder and appealed to this Court. Although there was no discussion of “plain error,” Judge Collins said for the Court:

“The sixth exception is to the instruction given to the jury by the trial court after the State’s Attorney and the attorney for the traverser had argued the case. The court instructed the jury as to the five possible verdicts under the indictment, any one of which they could render. Advice was also given as to the penalty for murder in the first degree. From the record, no objection nor exception was taken by the appellant to this, instruction. The appellant particularly objects for the reason that, although the jury was told what the penalty was for murder in the first degree, no information was given by the court as to the penalty for murder in the second degree or manslaughter. It is almost the universal custom in this State for the trial court in a murder case to instruct the jury as to the forms of verdict which they can render. It is true that usually counsel are asked whether they have any objection to the court so instructing the jury, and usually no objection is made. We are of the opinion that if the trial judge sees fit to instruct as to the penalty for some of the verdicts which the jury may render, information should be given as to the penalty for all of the verdicts. However, as there was no erroneous instruction as to the law, we do not consider this reversible error. Article 15, Section 5 of the Constitution of this State of course provides that in the trial of all criminal cases, the jury shall be the judges of law as well as of fact. It has been held many times that the court has the right to advise the jury in a criminal case although not bound or required to do so. K the instruction given is erroneous and the jury have followed it to the injury of the accused, although given in an advisory form, it is subject to an exception and correction on appeal. Franklin v. State, 12 Md. 236; Swann v. State, 64 Md. 423, 1 A. 872; Beard v. State, 71 Md. 275, 17 A. 1044; Guy v. State, 96 Md. 692, 699, 54 A. 879; Esterline v. State, 105 Md. 629, 636, 66 A. 269; Dick v. State, 107 Md. 11, 68 A. 286, 576; Luery v. State, 116 Md. 284, 292, 81 A. 681, 685, Ann. Cas. 1913D, 161; Cochran v. State, 119 Md. 539, 552, 87 A. 400; Vogel v. State, 163 Md. 267, 162 A. 705; Bevans v. State, 180 Md. 443, 449, 24 A. 2d 792.” Id. at 661-62.

In Glickman v. State, 190 Md. 516, 526, 60 A. 2d 216 (1948), the record disclosed “that the jury were never hearkened as to their verdict” and “that no objection was made to the verdict on this ground.” Our predecessors held “that such objection was waived.”

In Madison v. State, 200 Md. 1, 87 A. 2d 593 (1952), certain points were not raised in the trial court and it was contended “that defendant’s conviction of a capital offense depended on the testimony of one witness ... and that ‘upon the single material issue of fact thus joined, * * * any side issues, any incidents during the trial which might have prejudiced the jury against defendant, took on an importance and significance of unusual proportions not common to ordinary criminal cases, nor even to the usual homicide case.’ ” Judge Markell there said for the Court:

“We are told that failure to raise below questions now raised was due to fear of prejudicing defendant before the jury by objections, especially objections which suggest guilt, e.g., the right of the jury to find a verdict without capital punishment. We are aware that some lawyers include such ‘taboos’ in their ‘trial tactics’ — and others, who have attained reputation as trial lawyers, make any objections they deem substantial and press them to the end. We are, however, without authority to review errors in trial tactics of defense counsel or to speculate as to possibilities that different tactics might have produced a different result.” Id. at 8-9.

At another point there was a contention with reference to the advisory charge to the jury which after, as the Court put it, “accurately stating the five verdicts, including ‘guilty of murder in the first degree without capital punishment,’ then explained the four possibilities, as far as the crime itself [was] concerned, viz., murder in the first degree, murder in the second degree, manslaughter, and not guilty.” Judge Markell further said for the Court:

“Defendant now says that failure to mention again a verdict of guilty of murder in the first degree without capital punishment may have misled the jury and that counsel did not mention the point for fear of prejudicing the jury by suggesting defendant’s guilt. In both respects defendant assumes limitless stupidity on the part of the jury. If defendant wanted mention of a verdict of guilty without capital punishment repeated, he had only to ask and the court would doubtless have repeated it. If the jury might have been prejudiced by such a request, they might have been similarly prejudiced by repetition without request. In this matter there was no error, no ruling, and we see no indication of prejudice.” Id. at 11.

This was after having said at page 10, “Whatever ‘plain error material to the rights of the accused’ may include, it does not include bad guesses by counsel whether or not to object to anything done or left undone by the court.”

In Hendrix v. State, 200 Md. 380, 90 A. 2d 186 (1952), there was no objection to the trial judge’s advisory instructions to the jury. Hendrix attempted to invoke the “plain error” provisions of the then applicable rule which contained language virtually identical to that in the present Rule 756 g. This Court found without merit the first objection which concerned the instructions to the jury to which no objection had been entered. The Court declined to review his second contention that there was no legally sufficient evidence to warrant his conviction since he had made no motion in the trial court for a directed verdict.

In Leet v. State, 203 Md. 285, 100 A. 2d 789 (1953), yet another defendant failed to move for a directed verdict at the close of the evidence and then attempted to invoke the plain error rule in this Court, it then being Rule 6 (g). Chief Judge Sobeloff there said for this Court:

“We think that Rule 6 (g) was not intended to provide a review of the sufficiency of the evidence, where the point was not raised in suitable form as required by Rule 5A. In Hendrix v. State, supra, this Court refused to give to Rule 6 (g) the broad scope which appellant urges. Even the separate concurring opinion of Judge Markell made it plain that the rule should not be misused to entertain an appellant’s ‘frivolous afterthought.’ We consider this characterization apt and just here.” Id. at 292.

In Wolfe v. State, 218 Md. 449, 146 A. 2d 856 (1958), a defendant elected to represent himself in a trial before a jury. The trial judge attempted to assist the defendant to make a decision as to whether he should testify or remain silent. In so doing, he advised the defendant in the presence of the jury, as stated by this Court’s opinion:

“ ‘[T]he State has produced all the evidence it intends to produce against you. Normally, you would ask me to tell the jury there is no evidence in the case legally sufficient to convict you under the various counts of this indictment. I will treat such a motion as having been made by you and I will deny or overrule the motion.’

“ ‘[I]t is now up to you to decide whether you want to produce any evidence — including yourself, testimony of yours — for the consideration of the jury. * * * [Y]ou don’t have to testify if you don’t want to. If you don’t testify I would think that the case which the State has made out — through the witnesses that have testified — would be pretty strong and substantial against you, and in support of this indictment.’ ” Id. at 452.

There was no motion to withdraw a juror, declare a mistrial, or to strike out the remarks and instruct the jury to disregard them. There was no objection of any kind. The defendant took the stand to testify in his own behalf. He was examined at length by the trial judge and subsequently cross-examined by the state’s attorney. During the course of the examination he frankly admitted that he tried to cash the check in question, but denied that he had forged it. In his opening statement to the jury — made against the advice of the trial judge — he had made the same admission and denial. This Court, after noting that “[generally, the prejudicial effect of improper remarks may not be raised on appeal unless preserved by an appropriate objection, i.e., a motion to withdraw a juror and declare a mistrial, or a motion to strike out the remarks and instruct the jury to disregard them,” held:

“[W]e are convinced that the error — which we think was material to the rights of the defendant — was such as the court could not have corrected even if it had attempted to do so. Under such circumstances we think we must of our own motion take cognizance of and correct the plain error by awarding the defendant a new trial even though such error may not have been properly includible in the assignment of errors in this case. Maryland Rule 739 g.” Id. at 455.

Reynolds v. State, 219 Md. 319, 149 A. 2d 774 (1959), was decided just three months after Wolfe. Judge Horney again wrote for the Court, saying:

“The State frankly admits that the trial court did not fully instruct the jury as to the particular offenses charged in the indictment, and that it did not explain the real meaning of keeping a disorderly house or the other offenses charged in the indictment. But, the State insists that because the defendant failed to make a timely objection to the court’s instructions, she is precluded from raising the objection here. We must agree. See Hendrix v. State, 200 Md. 380, 90 A. 2d 186 (1952); Madison v. State, 200 Md. 1, 87 A. 2d 593 (1952).

“But the defendant, admitting that she did not seasonably object pursuant to Maryland Rule 739 f, insists that this Court should of its own motion invoke the provisions of Rule 739 g and take cognizance of and correct what she asserts is a plain error material to her rights. We do not agree. In this case it is obvious that the errors complained of are such that the trial court could have — and undoubtedly would have — corrected if the defendant had interposed her objections, as she should have done, before the jury retired to consider its verdict. Cf. Wolfe v. State, 218 Md. 449, 146 A. 2d 856 (1958), (error was such that trial court could not have corrected even if it had attempted to do so). See also Brown v. State, 203 Md. 126, 100 A. 2d 7 (1953), (court was not afforded an opportunity to clarify or correct misleading implications).” Id. at 324-25.

In Giles v. State, 229 Md. 370, 386-87, 183 A. 2d 359 (1962), appeal dismissed, 372 U. S. 767 (1963), there was “a contention that the defendants were denied due process and equal protection of the law by the failure of the trial court to give an advisory instruction as to the law, even though the defendants made no request therefor.” It was claimed “that even if a jury may determine what principles of law are to be applied in a criminal case, it may not in a capital case be left without any instruction as to the law/’ The Court pointed out that “the claim overlook[ed] the fact that a defendant may waive his right to require an instruction in a capital case as he may in any other criminal case.” Judge Horney said for the Court:

“Although there is nothing in the record to so indicate, it may be assumed that the State’s Attorney as well as the defendants, who were represented by an able and experienced attorney, deliberately chose not to request instructions or object to the failure to give them, in order to be in a position to argue the law of the case to the jury without prior or subsequent instructions by the court contrary to what they anticipated arguing or had already argued to the jury. Cf. Schanker v. State, 208 Md. 15. 116 A. 2d 363 (1955). But be that as it may, since there was no objection to the absence of an instruction, there is nothing before us to review. Rules 756 g and 885; Lane v. State, 226 Md. 81, 172 A. 2d 400 (1961), cert. den. 368 U. S. 993 (1962); Reynolds v. State, 219 Md. 319, 149 A. 2d 774 (1959); Bulluck v. State, 219 Md. 67, 148 A. 2d 433 (1959).

“While Rule 756 g permits this Court of its own motion to take cognizance of and correct any plain error material to the rights of the accused even though not included in the assignment of errors, we are unable to say that the failure to request an instruction or to object to the failure to give one under the circumstances in this case was such an error as this Court ought to take notice of. See Martel v. State, 221 Md. 294, 157 A. 2d 437 (1960), cert. den. 363 U. S. 849 (1960), where we had occasion to point out that whatever other meanings the term ‘plain error’ might involve, it does not include appellate alleviation of such unfortunate consequences as may result from a choice of trial tactics. See also Canter v. State, 220 Md. 615, 155 A. 2d 498 (1959), and Madison v. State, 200 Md. 1, 87 A. 2d 593 (1952).

“Furthermore, even if it is assumed that the defendants had a constitutional right to have the jury instructed as to the law, it is clear that in a case such as this, where they were represented by competent and experienced counsel, even constitutional rights may be waived by not asserting them. Lenoir v. State, 197 Md. 495, 80 A. 2d 3 (1951). See also Heffner v. Warden, 211 Md. 638, 126 A. 2d 304 (1956), cert. den. 353 U. S. 914 (1957), a habeas corpus proceeding, in which the same contention as that presented here was raised and rejected.” Id. at 386-87.

It must be borne in mind that the issue here is not related to guilt or innocence and that in the Maryland system, unlike that prevailing in some states, sentencing power rests in the judge, not the jury, except in those instances where the jury brings in a verdict with the magic words “without capital punishment.” Even though the guilty verdict in this case did not contain those words, the trial judge could have imposed a sentence of 20 years or less had he thought such sentence applicable. We do not know why petitioner’s counsel in this case did not request the trial judge to instruct the jury in this matter relative to its right to limit the period of incarceration by adding the words “without capital punishment.” It might well have been a matter of trial tactics. Rape and first degree murder historically have been crimes which in this State have been punishable by death or life imprisonment. It could well be that trial counsel for Dimery reasoned that the average juror would be aware of this penalty, as most citizens were, and such juror would conclude after Furman that the only possible sentence upon a guilty verdict would be life imprisonment. Counsel might have further reasoned that a jury finding any ground for sympathy with the defendant would rebel against this prospect by bringing in a verdict of not guilty, rather than one of guilty, but if the jury knew that by its recommendation it could restrict punishment to imprisonment for 20 years, a sympathetic jury might be more likely to adhere to this middle ground. On the other hand, it could have been pure oversight. Be that as it may, if there is not to be chaos in the courts there must be some order in the conduct of proceedings. We must not lose sight of the admonition of Mr. Justice Frankfurter in his concurring opinion in Johnson v. United States, 318 U. S. 189, 202, 63 S. Ct. 549, 87 L. Ed. 704 (1943), that we should not “turn a criminal appeal into a quest for error.” It is much easier to think and to pick out errors in the isolation of an appellate bench and the seclusion of an appellate judge’s chambers than it is to think in the heat and tension of a jury trial, particularly a protracted jury trial as was this one. As every bleacher fan and every Monday morning quarterback knows, it is easy to second guess any given situation. We are of the opinion that the sound rule to follow, the rule which protects the rights of litigants, but at the same time serves the orderly administration of criminal justice, is that we will not take cognizance under Rule 756 g of an error such as that concerning which complaint is made here. Dimery was represented by competent and conscientious counsel. We have no doubt that a timely objection would have brought prompt correction by the trial judge. There having been no such objection, we regard the point as waived, recalling the words of Judge Markell in Madison v. State, 200 Md. 1, supra:

“Whatever ‘plain error material to the rights of the accused’ may include, it does not include bad guesses by counsel whether or not to object to anything done or left undone by the court.” Id. at 10.

Judgment affirmed.