Opinion
[H.C. No. 8, October Term, 1953.]
Decided July 2, 1953.
HABEAS CORPUS — Counsel — Deprivation of. A petitioner for a writ of habeas corpus has the burden of showing that for want of counsel an ingredient of unfairness operated actively in the process that resulted in his confinement. p. 654
HABEAS CORPUS — Witnesses — Deprivation of. The complaint of a prisoner that he was refused an opportunity to obtain witnesses is not reviewable on habeas corpus. p. 654
HABEAS CORPUS — Cross-examination of Witnesses — Denial of. Denial of the right to cross-examine witnesses cannot be raised on habeas corpus. p. 654
HABEAS CORPUS — Bail — Denial of. Denial of bail cannot be raised on habeas corpus. p. 654
HABEAS CORPUS — Appeal From A Magistrate — Denial of. Denial of right of appeal from a magistrate cannot be raised on habeas corpus. p. 654
Decided July 2, 1953.
Habeas corpus proceeding by Emanuel Daisey 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.
Leave is applied for by Emanuel Daisey to appeal from a denial of the writ of habeas corpus by the Circuit Court for Baltimore County (GONTRUM, J.).
Petitioner was tried before a trial magistrate, found guilty of assault and battery and sentenced to serve three years in the Maryland House of Correction. The petitioner contends that he was denied the benefit of court appointed counsel; that he was denied witnesses in his behalf; that he was denied the right to cross-examine witnesses; that he was denied bond; and that he requested an appeal to the Circuit Court for Wicomico County, which was denied.
There is no merit in petitioner's complaint concerning denial of court appointed counsel. This is not a case where a traverser claims that he was denied the right to have a lawyer, but merely that the Court refused to appoint one for him. He has not met the burden of showing that for want of the opportunity of counsel "an ingredient of unfairness operated actively in the process that resulted in his confinement". Martucci v. Warden, 202 Md. 648, 96 A.2d 490; Anglin v. Warden, 201 Md. 665, 95 A.2d 89; Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252; Gibbs v. Burke, 337 U.S. 773, 69 S.Ct. 1247.
A complaint that a defendant was refused an opportunity to obtain witnesses is reviewable on appeal, but not on habeas corpus. Sears v. Warden, Habeas Corpus Application No. 4, October Term, 1953, filed June 10, 1953; Bowen v. Warden, 202 Md. 646, 96 A.2d 489.
As to petitioner's point that he was denied the right to cross-examine witnesses, this Court has held that the denial of the right to be confronted by witnesses may be raised on appeal and not on habeas corpus. Jackson v. Warden, 190 Md. 748, 60 A.2d 524. We think that the same is true of a claim of denial of the right to cross-examine.
His argument with respect to bail must be raised on appeal and not by habeas corpus. It has been held by this Court that the fixing of excessive bail "does not vitiate the prisoner's conviction and therefore cannot be raised on habeas corpus". Taylor v. Warden, 201 Md. 656, 92 A.2d 757; Sykes v. Warden, 201 Md. 662, 93 A.2d 549.
Although petitioner complains that he was denied his right to appeal, the docket entries which are part of the record in this case show that he filed a motion to dismiss his appeal on September 11, 1952. Moreover, it has been held that denial of the right of appeal from a magistrate cannot be raised on habeas corpus. It should be raised by application to the lower court. Paff v. Warden, 200 Md. 660, 90 A.2d 173, 174; Sykes v. Warden, 201 Md. 662, 93 A.2d 549.
Application denied, with costs.