WILLIAM HALSTEAD
v.
STATE OF MARYLAND.
No. 205, September Term, 1967.
Court of Special Appeals of Maryland.
Decided May 6, 1968.The cause was argued before MURPHY, C.J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.
William R. Lenhard for appellant.
Donald Needle, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State's Attorney for Baltimore City, and I. Elliott Goldberg, Assistant State's Attorney for Baltimore City, on the brief, for appellee.
PER CURIAM:
William Halstead, the appellant, was convicted of unauthorized use of a motor vehicle in the Criminal Court of Baltimore, Judge James K. Cullen presiding without a jury.
In view of the contentions it will be unnecessary to review the facts of the case.
Halstead first contends that the trial judge should have ordered a mistrial after the State offered into evidence a waiver of jurisdiction by the Juvenile Court. His reasoning is that under Maryland Rules 705 and 911 the waiver must be entered on the docket entries but need not be offered into evidence. He further reasons that the attempt to enter the waiver into evidence was a bad faith effort on part of the Assistant State's Attorney to call to the attention of the court the fact that Halstead *123 was considered "a bad boy" by the juvenile judge who allegedly, by custom and usage, did not waive juvenile jurisdiction unless he, the judge, considered the juvenile "a bad boy." There are a number of answers to Halstead's contentions: (1) His objection to the evidence was sustained by the trial judge; there was no motion for a mistrial; therefore, under Maryland Rule 1085 there is nothing before this court to review; (2) there is nothing in the record to support the alleged custom and usage and (3) there is nothing in the record to show the bad faith of the State's Attorney, but on the contrary, it appears to be an innocent error because he was not familiar with Maryland Rules 705 and 911. This court will not assume that bias, prejudice or improper influence prejudiced the defendant; the burden is on him to show that such fact existed. Charles v. State, 1 Md. App. 222, 228 A.2d 620, Borman v. State, 1 Md. App. 276, 299 A.2d 440.
The second contention is that the court should have declared a mistrial at the time of sentencing. Since no motion for a mistrial was made, there is nothing before this court to review, Maryland Rule 1085. The contention seems to be that In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (May 15, 1967) should be applied retroactively to void the waiver of jurisdiction by the juvenile court, since the sentencing was on June 26, 1967 and subsequent to the Gault decision, and Halstead, allegedly (this is not shown by the record) was without counsel at the waiver hearing. The record does show that the waiver was signed in the Juvenile Court on February 8, 1967. In Hammer v. State, 3 Md. App. 96, 238 A.2d 567, we reviewed and rejected this contention. We held that In re Gault applied only to waiver hearings held subsequent to May 15, 1967, assuming, without deciding, that In re Gault required counsel at waiver hearings.
Judgment affirmed.