Opinion
[H.C. No. 80, September Term, 1957.]
Decided March 25, 1958.
HABEAS CORPUS — Guilt or Innocence — Evidence — Sufficiency of. Questions of guilt or innocence, and of the sufficiency of the evidence to justify conviction, cannot be retried or reviewed on habeas corpus. p. 638
HABEAS CORPUS — Remarks Allegedly Prejudicial by Trial Judge. Allegedly prejudicial remarks made by a trial judge should be tested by an appeal, and not by habeas corpus, as in the instant case, where the Court noted that there was nothing in the record to support the allegation of prejudice. p. 638
CRIMINAL LAW — Robbery — Sentence of Seven Years for, Did Not Exceed Maximum. A sentence of seven years for robbery, entered pursuant to Code (1951), Art. 27, § 573, which provides for a sentence of three to ten years, did not exceed the maximum provided by law. p. 638
J.E.B.
Decided March 25, 1958.
Habeas corpus proceeding by John Elsworth Mooney against the Warden of the Maryland House of Correction. From a refusal of the writ, petitioner applied for leave to appeal.
Application denied, with costs.
Before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
This is an application by John Elsworth Mooney for leave to appeal from the denial of a writ of habeas corpus by Raine, J., of the Circuit Court for Baltimore County.
The petitioner was tried and convicted of robbery in the Criminal Court of Baltimore (Tucker, J.) and sentenced to seven years in the Maryland House of Correction.
Judge Raine properly ruled that the petitioner was not entitled to have the question of his guilt or innocence retried on habeas corpus, and that the sufficiency of the evidence to justify conviction may not be reviewed on a petition for the writ.
However, Judge Raine overlooked two other contentions of the petitioner: (i) that the trial judge was prejudiced, and (ii) that he imposed an illegal sentence. With respect to the allegation of prejudice there is nothing in the record to support the charge. Moreover, alleged prejudicial remarks made by a trial judge should be tested by an appeal and not by habeas corpus. Ford v. Warden, 214 Md. 649, 135 A.2d 894 (1957). The petitioner was sentenced pursuant to the provisions of Code (1951), Art. 27, sec. 573, which provides for a sentence of three to ten years. The sentence imposed did not exceed the maximum provided by law. Jones v. Warden, 214 Md. 656, 136 A.2d 377 (1957).
Application denied, with costs.