AHERN v. WARDEN, 203 Md. 672 (1953)

100 A.2d 645

AHERN v. WARDEN OF MARYLAND HOUSE OF CORRECTION

[H.C. No. 19, October Term, 1953.]Court of Appeals of Maryland.
Decided December 1, 1953.

HABEAS CORPUS — Jury Trial — Deprivation of. A claim of a denial of jury trial cannot be raised on habeas corpus. p. 673

Decided December 1, 1953.

Habeas corpus proceeding by Charles J. Ahern against Warden of Maryland House of Correction. From a refusal of the writ, petitioner applied for leave to appeal.

Application denied.

Before SOBELOFF, C.J., DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

Page 673

HENDERSON, J., delivered the opinion of the Court.

This is an application for leave to appeal from the denial of a writ of habeas corpus. Petitioner was tried, on a charge of violating the narcotics law, before the court without a jury, found guilty and sentenced to two years. The case was appealed to this court where various alleged errors in the trial were reviewed and the judgment affirmed. Clark et al. v. State, 202 Md. 133, 96 A.2d 253.

Petitioner now raises the point that he was deprived of his right to a jury trial. He alleges that his lawyer, of his own selection, waived a jury trial without his knowledge or consent; that when the trial began without a jury he thought that the testimony of the first witness, a doctor, was only being taken for convenience, and when the next witness was called he protested to the court that his lawyer had deceived him and that he wanted a jury trial. He alleges that the court denied his request, but admits that the court instructed the lawyer to confer with the petitioner. He alleges that his lawyer promised him to put the codefendant on the stand, and the trial proceeded on this assumption, but the codefendant was not called. It is not alleged that any further objection was made to the trial without a jury. The petitioner was represented by the same lawyer throughout the trial and on the appeal to this court. No question as to the waiver of jury trial was raised on appeal.

We have held that a claim of denial of jury trial must be raised on appeal and cannot be raised on habeas corpus. Se Bowen v. Warden, 202 Md. 646, 96 A.2d 489, Wilson v. Warden, 198 Md. 663, 80 A.2d 897, and Raynes v. Warden, 193 Md. 700. We cannot hold that the trial was a nullity, and upon the petitioner’s own statement he has shown no ground for the issuance of the writ.

Application denied, with costs.

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