Heffner v. Warden of Maryland House of Correction , 211 Md. 638 ( 2001 )

211 Md. 638 (1956) 126 A.2d 304

HEFFNER
v.
WARDEN OF MARYLAND HOUSE OF CORRECTION

[H.C. No. 25, October Term, 1956.]

Court of Appeals of Maryland.

Decided November 2, 1956.

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

BRUNE, C.J., delivered the opinion of the Court.

This is an application for leave to appeal from a denial of a writ of habeas corpus. The petitioner, Edgar F. Heffner, III, was tried and convicted by a jury in Prince George's County of the crime of perverted sexual practice and assault. The petition for the writ of habeas corpus was directed to Judge John B. Gray, Jr., who had presided at the petitioner's trial.

Petitioner's sole complaint is that the trial court omitted to instruct the jury with respect to the law applicable to the crime with which the defendant was charged. The record indicates that the only instructions given related to the several verdicts which the jury might render. Article XV, Section 5, of the Constitution of Maryland provides that the jury shall be the judge of the law as well as of the facts in criminal cases. It permits, but does not require, the giving of advisory instructions. Rule 6 (b) of our Rules of Criminal Practice and Procedure requires the trial judge to give such instructions if requested by either side to do so, but no such request is shown here. See Schanker v. State, 208 Md. 15, 116 A.2d 363, and cases therein cited. The petitioner's objection, if valid (and we certainly do not intimate that it is) would go only to the regularity of the proceeding, and, as we have repeatedly held, could therefore not be raised on habeas corpus.

Application denied, with costs.