Opinion
June 10, 1966.
Appeal from the Circuit Court, McCracken County, C. Warren Eaton, J.
Virgel Turner, pro se.
Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Frankfort, for appellee.
On this appeal from an order denying appellant relief on his motion under RCr 11.42, it is contended that appellant was entitled to an evidentiary hearing and that he was denied due process of law because he did not have counsel at a preliminary hearing in the Paducah police court.
Obviously an evidentiary hearing (with the appellant present) would serve no purpose when no material issue of fact was raised by appellant's motion. See Oakes v. Gentry, Ky., 380 S.W.2d 237; Bell v. Gentry, Ky., 380 S.W.2d 259; Lawson v. Commonwealth, Ky., 386 S.W.2d 734.
The issue presented was one of law, and we have consistently held that where no prejudice is shown a person charged with a crime is not denied due process of law by failure to appoint counsel for him at a preliminary hearing. Carson v. Commonwealth, Ky., 382 S.W.2d 85; Yates v. Commonwealth, Ky., 386 S.W.2d 450; Commonwealth v. Watkins, Ky., 398 S.W.2d 698.
The judgment is affirmed.