Opinion
[No. 209, September Term, 1959.]
Decided May 16, 1960.
CRIMINAL LAW — Trial Without Stenographer Present — No Record Made — Nothing For Court To Pass Upon On Appeal — Accused Waived Right To Have Proceedings Recorded So As To Enable Him To Perfect Appeal. In the instant appeal from a conviction of unlawfully obstructing justice, where no record was made of the testimony of witnesses or objections thereto and no notes were taken from which an agreed record could be prepared, the Court, in affirming the judgment on the ground that there was nothing for it to pass upon, held that the accused, by going to trial without a stenographer present, waived his right to have the proceedings recorded so as to enable him to perfect an appeal. It was stipulated that there was no express waiver but also that there was no request for the services of a stenographer or for a postponement to obtain one. The record made it clear that the attorney for the accused knew that no stenographer was present and that a review on appeal probably could not be had without a record, and there is a presumption that an attorney has authority to bind his client by his actions relating to the conduct of litigation. pp. 417-418
T.G.B.
Decided May 16, 1960.
Appeal from the Circuit Court for Worcester County (CHILD, J.).
George S. Bicknell was convicted, in a non-jury case, of unlawfully obstructing justice, and he appeals from the judgment entered thereon.
Judgment affirmed, with costs.
The cause was argued before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
John W. Jacobs, Jr., for the appellant.
James H. Norris, Jr., Special Assistant Attorney General, with whom were C. Ferdinand Sybert, Attorney General, and Daniel Prettyman, State's Attorney for Worcester County, on the brief, for the appellee.
This appeal is from the judgment and sentence of the appellant to six months in the House of Correction and a fine of $500, suspended on condition that he pay the fine.
The appellant was represented by counsel of his own selection, tried before the court without a jury, and convicted of unlawfully obstructing justice by interfering with the arrest of his wife, Sallie W. Bicknell, by Deputy Sheriff Tyler. It is stipulated that no court stenographer was present at the trial, no record made of the testimony of the witnesses, or objections thereto, if any, and that no notes were taken by anyone from which a record could be prepared and agreed upon. The State has moved to dismiss the appeal. Obviously, there is nothing for us to pass upon. There is not even a specification of error in the judgment or any other ruling of the trial court, if any. The appellant contends, however, that, since court stenographers are usually available, he had an absolute right to have the trial proceedings recorded so as to enable him to perfect an appeal, and the fact that he went to trial without a stenographer present did not constitute a waiver.
We find no merit in these contentions. In Banks v. State, 203 Md. 488, 494, 102 A.2d 267, we held that the right or privilege is one that may be waived in a criminal case. Cf. Newark Trust Co. v. Trimble, 215 Md. 502, 506, 138 A.2d 919, and Jefferson v. State, 218 Md. 397, 401, 147 A.2d 204. The appellant seeks to distinguish the Banks case on the ground that there the defendant's attorney, who was in fact the same attorney who represented the appellant in the instant case, was informed that no stenographer was available in court to take the testimony, and in the presence of his client stated that "they were willing to proceed without a stenographer". In the instant case, it is stipulated that there was no specific waiver, but also that prior to or during the trial there was no request for the services of a stenographer, or any request for a postponement to obtain one. The record makes it clear, we think, that the attorney for the accused knew that a stenographer was not present, and that, in the absence of a record, a review on appeal probably could not be had. As stated in Commonwealth v. Ashe, 74 A.2d 656, 659 (Pa. Super.), "Certainly a defendant represented by counsel cannot keep silent at the trial, gamble on the verdict, and when it is found to be adverse, demand a new trial on the ground that he took no exception." See also Commonwealth v. Diehl, 107 A.2d 543, 545 (Pa.). The cases are legion holding that during a trial counsel may waive review by failure to object to evidence, Saldiveri v. State, 217 Md. 412, 419, 143 A.2d 70, by failure to file a motion for directed verdict, Braxton v. State, 214 Md. 370, 374, 135 A.2d 307, or by failure to raise even constitutional points by seasonable objection. Jackson v. Warden, 218 Md. 652, 655, 146 A.2d 438. We have often recognized the presumption that an attorney has authority to bind his client by his actions relating to the conduct of litigation. Cf. Secor, Adm'r v. Brown, 221 Md. 119, 123, 156 A.2d 225, and cases cited.
Judgment affirmed, with costs.