Summary
In Fisher v. Swenson et al., 192 Md. 717, 64 A.2d 124, the same points he now raises were considered by this Court, in an appeal from Judge Bailey, who refused to grant him the writ.
Summary of this case from State ex Rel. Fisher v. WardenOpinion
[H.C. No. 20, October Term, 1948.]
Decided February 17, 1949.
Constitutional Law — Due Process — Failure to Give Criminal Charge, Or Read It, To Accused, Not Denial Of, If He Had Counsel, Plead Guilty, and No Showing of Request For And Refusal — Criminal Law — Indictment — May Be Waived — Is Waived In Montgomery County Case By Filing Petition For Trial Upon Information — Bringing Accused Into Jurisdiction Without Warrant and Holding Him For 30 Hours Without Hearing or Arraignment, Not Grounds For Release On Habeas Corpus And Do Not Invalidate Charge, Waiver of Indictment, Plea of Guilty and Sentence.
Failure to give copy of criminal charge to accused or to read it to him is not denial of due process of law where he was represented by counsel, plead guilty and does not allege a request therefor and refusal of it. p. 718
The right to indictment by a grand jury may be waived. p. 718
Where an accused in a Montgomery County criminal case has filed a petition for trial upon criminal information, stating therein that he wishes to waive his right to an indictment, in accordance with Sec. 637, Art. 27, Code (1947 Supp.), he thereby does waive such right. p. 718
Bringing of accused from Washington to Montgomery County for trial without a warrant and holding him for 30 hours without a hearing or arraignment do not invalidate the charge against him, his waiver of indictment, plea of guilty and sentence and are not grounds for release on habeas corpus. p. 719
Decided February 17, 1949.
Habeas corpus proceeding by Clifton B. Fisher against Edwin Swenson, Warden of Maryland Penitentiary, and others. On petitioner's application for leave to appeal from denial of a writ.
Application denied.
Before MARBURY, C.J., DELAPLAINE, COLLINS, GRASON, HENDERSON, and MARKELL, JJ.
This is an application for leave to appeal from denial of a writ of habeas corpus. Petitioner is imprisoned under a sentence of four years for burglary, housebreaking and larceny, on a written waiver of indictment, on information and a plea of guilty.
The application is denied on Judge Bailey's opinion, which is as follows:
"The petition in this case alleges that the petitioner is illegally confined in the Maryland Penitentiary for two reasons:
"1. That no copy of the charge was read to or given him prior to the date of sentence.
"2. And that he was tried without a previous indictment by the Grand Jury.
"A certified copy of the docket entries in No. 67, Criminals, November Term, 1946, in the Circuit Court for Montgomery County, Maryland, discloses that the petitioner was represented by counsel and that he entered a plea of guilty. He does not allege that he demanded a copy of the charge and that it was refused. The failure to furnish him with a copy under these circumstances, even if true, would not amount to a denial of due process of law.
"The second contention is likewise without merit. The docket entries, which are filed herewith, show that the petitioner filed his petition and suggestion for trial on criminal information in accordance with the provisions of Section 637, of Article 27, 1947 Cumulative Supplement of the Code. It appears further that all the provisions of said section were complied with. The right to indictment by a Grand Jury is a right which may be waived."
Rose v. State, 177 Md. 577, 10 A.2d 617; Callan v. State, 156 Md. 459, 462-464, 144 A. 350; see also Bute v. People of State of Illinois, 333 U.S. 640, 657, 68 S.Ct. 763; Barkman v. Sanford, 5 Cir., 162 F.2d 592, certiorari denied 332 U.S. 816, 68 S.Ct. 155; DeGolyer v. Commonwealth, 314 Mass. 626, 51 N.E.2d 251.
In a brief in this court petitioner alleges that he was brought from Washington without a warrant and that he was held for thirty hours without a hearing or arraignment. These allegations are not properly before us. If they were, they would not invalidate the charge, waiver of indictment, plea of guilty and sentence. Davis v. Brady, 188 Md. 113, 51 A.2d 827; Edmondson v. Brady, 188 Md. 96, 52 A.2d 86; Bowie v. Warden of Maryland Penitentiary, 190 Md. 728, 60 A.2d 185.
Application denied, without costs.