RICAIL v. WARDEN, 210 Md. 664 (1956)

123 A.2d 908

RICAIL v. WARDEN OF MARYLAND HOUSE OF CORRECTION

[H.C. No. 5, October Term, 1956 (Adv.).]Court of Appeals of Maryland.
Decided July 12, 1956.

HABEAS CORPUS — Jury Trial — Claim as to Denial of, Without Merit. There was no merit to a contention by petitioner for a writ of habeas corpus that his request for a jury trial was denied, where, on arraignment, he elected to be tried by the court without a jury, his counsel making known the choice. p. 665

HABEAS CORPUS — Jury Trial — Denial of. A claim of denial of a jury trial cannot be raised on habeas corpus. p. 665

HABEAS CORPUS — Evidence of Alibi — Other Proof of Innocence. Habeas corpus cannot be used to offer evidence of an alibi or other proof of innocence. p. 665

HABEAS CORPUS — Guilt or Innocence — Sufficiency of Evidence. The question of guilt or innocence, and the sufficiency of the evidence to convict, cannot be retried on habeas corpus. pp. 665-666

HABEAS CORPUS — Not an Appeal — Nor Motion for New Trial. Habeas corpus procedure cannot serve as an appeal or as a motion for a new trial. p. 666

J.E.B.

Page 665

Decided July 12, 1956.

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

Application denied.

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

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

This is an application for leave to appeal from a denial of a writ of habeas corpus by Judge Warnken, of the Supreme Bench of Baltimore City. The petitioner was convicted of larceny by Judge James MacGill of the Circuit Court for Howard County and sentenced to eighteen months in the Maryland House of Correction.

The petitioner contends that there now exists new evidence which not only is itself relevant, but which would require the production of witnesses who were not available at the trial. Petitioner further contends that his request for a jury trial before the Howard County Court was denied.

The docket entries refute the second contention of petitioner. The petitioner, on arraignment, elected to be tried by the court without a jury, his counsel making known the choice. In any event we have held that a claim of denial of jury trial cannot be raised on habeas corpus. Ahern v. Warden, 203 Md. 672.

Petitioner’s contention that he now has new evidence in his possession, namely, a check representing the amount received from the sale of pipe which he is accused of stealing, cashed by another, is likewise without merit. Petitioner cannot make use o habeas corpus to offer evidence of an alibi or other proof of innocence. Buffington v. Warden, 201 Md. 642. In short, as stated in Rountree v. Wright, 189 Md. 292, where one of petitioner’s contentions was that he had newly discovered evidence that he did not commit the crime of which he was accused, the question of guilt or innocence, and the sufficiency of evidence to convict, cannot be retried on habeas

Page 666

corpus. Medley v. Warden, 207 Md. 634; Martucci v. Warden, 202 Md. 648. Petitioner here is merely attempting to have habeas corpus procedure serve as an appeal or as a motion for a new trial and this he cannot do. Buffington v. Warden, supra.

Application denied, with costs.