STATE EX REL. WALKER v. WARDEN, 192 Md. 730 (1948)

64 A.2d 560

STATE EX REL. WALKER v. WARDEN OF MARYLAND HOUSE OF CORRECTION

[H.C. No. 25, October Term, 1948.]Court of Appeals of Maryland.
1948.

Habeas Corpus — Absence of Witnesses — Where Not Shown That They Were Summoned Or What They Would Have Testified, No Release On.

Where petitioner for writ of habeas corpus, who was represented by counsel at his trial, complains of absence of witness, but petition does not show witness was summoned or what he would have testified, if present, he is not entitled to release on that ground. pp. 730-731

Habeas corpus proceedings by State, on relation of John C. Walker, against Warden of the Maryland House of Correction. Writ of habeas corpus was refused and petitioner applies for leave to appeal.

Application denied.

Before MARBURY, C.J., DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

PER CURIAM.

This is an application for leave to appeal from refusal of a writ of habeas corpus. Petitioner is imprisoned under sentence of three years in the penitentiary (and transferred to the House of Correction) on a charge of assault with intent to rape and a verdict of not guilty on the first count and guilty on the second count of the indictment. Evidently the second count was for common assault. The record contains no copy of the indictment. Petitioner, who was represented by counsel, also complains of trial without waiting for a witness, Campbell, whom he had had summoned. The application is denied on Judge Tucker’s opinion, which is as follows:

“From the docket entries which are stated in the petition for a writ of habeas corpus it appears that the first count of the indictment against the petitioner John C.

Page 731

Walker, charged him with assault with intent to rape and that the second count charged common assault. These entries show that the petitioner was acquitted on the first count and convicted on the second count. He was therefore committed to prison for three years upon his conviction for common assault. The petition does not show whether a witness, Campbell, was summoned, and neither does it state what his testimony would have been if he had been present. If his testimony was for the purpose of exonerating the petitioner as to the charge of assault with intent to rape his absence was not prejudicial because the petitioner was acquitted of that charge. The petitioner was represented by counsel at the trial, and the petition does not show that the petitioner was denied any fundamental rights.” See Code, 1947 Supplement, Art. 27, § 788.

Application denied, without costs.