White v. State

258 A.2d 50, 8 Md. App. 51, 1969 Md. App. LEXIS 254

Opinions

Morton, J.,

delivered the majority opinion of the Court. Orth, J., dissents. Dissenting opinion by Orth, J., on page 54 infra.

The appellant, Carroll Gail White, was charged in a two count indictment with assault 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: “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; Canter v. State, 220 Md. 615; Reynolds v. State, 219 Md. 319.” 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; Fabian v. State, 3 Md. App. 270, 283-288; State v. Long and Nelson, 1 Md. App. 326. 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.

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 mo tion 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.

Judgment affirmed.