Opinion
[No. 23, September Term, 1962.]
Decided October 16, 1962.
CRIMINAL LAW — Evidence Sufficient To Convict, Found. In this prosecution for violation of the narcotics law, where there was no motion for a directed verdict, the Court held that the question of whether there was evidence sufficient to convict was not before it on appeal, citing Code (1957), Art. 27, § 593. pp. 473-474
CRIMINAL LAW — Instructions To Jury — Where No Objection To Or Request For Special Instruction — Question Of Adequacy Of Instructions Not Before Court Of Appeals. In this prosecution for violation of the narcotics law, it was contended on appeal that the trial court erred in not instructing the jury as to the weight to be given to the testimony of the apprehending officer because of his entrapment of the accused. Because the accused made no objection to the court's advisory instruction to the jury and made no request for a special instruction, it was held that the accused's contention was not properly before the Court of Appeals. p. 474
CRIMINAL LAW — Maryland Rule 756 g As To Court Of Appeals Considering Any Error In Instructions To Jury Even Though Not Objected To. Where the advisory instructions to the jury were adequate and there was no plain error material to the rights of the appellant, the Court of Appeals will not invoke that portion of Rule 756 g which permits it to take cognizance of and correct any plain error in the instructions to the jury. p. 474
Decided October 16, 1962.
Appeal from the Criminal Court of Baltimore (CARTER. J.).
Lonnie B. Jones was convicted of a violation of the narcotics law and he appealed.
Judgment affirmed.
The cause was argued before BRUNE, C.J., and HENDERSON, HAMMOND, HORNEY and SYBERT, JJ.
Stanley J. Schapiro, with whom was Michael F. Freedman on the brief, for appellant.
Loring E. Hawes, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Saul A. Harris and Dene L. Lusby, State's Attorney and Assistant State's Attorney for Baltimore City, respectively, on the brief, for appellee.
Lonnie B. Jones was convicted by a jury in the Criminal Court of Baltimore of violating the narcotics law, and, after sentence, he appealed. He complains here that the evidence was insufficient to sustain the conviction, and that the trial court erred in not instructing the jury as to the weight to be given to the testimony of the apprehending officer.
There was evidence to show a sale of heroin by the appellant to a police officer. The contention as to the sufficiency of the evidence must fail. The record shows, and the appellant concedes, that no motion for a directed verdict (now a judgment of acquittal) was made at any stage of the trial. Thus the question is not before us for determination. Code (1957), Art. 27, Sec. 593; Humphreys v. State, 227 Md. 115.
The appellant's second contention is also not properly before us, because no objection was made to the court's advisory instruction to the jury. Maryland Rule 756 g. However, while appellant denies making the sale of heroin, his version of the episode was that the police officer was attempting to entrap him into making a sale, and he therefore claims the court should specially have instructed the jury as to the weight to be given to the officer's testimony. He relies upon a statement made in Callahan v. State, 163 Md. 298, at 302, that while [under circumstances comparable to those here] it is not objectionable for an officer to lay a trap to detect an offender, "The only effect would be to justify a more careful scrutiny of the evidence". Even though appellant did not request a special instruction and made no objection to the court's charge as given, he asks us to invoke the discretion vested in us by Rule 756 g to "take cognizance of and correct any plain error in the instructions, material to the rights of the accused even though such error was not objected to" as otherwise provided by the Rule. However, we have read the instructions given by the trial judge to the jury and find them adequate under the circumstances of the case, and we find in the record no plain error material to the rights of the appellant. Hence this case does not present a situation calling for invocation of the Rule.
Judgment affirmed.