Kirby v. Warden of Md. Penitentiary, 9

• Decision Date: 26 June 1957
• Docket Number: No. 9,9
• Citation: 214 Md. 600,133 A.2d 421
• Parties: John E. KIRBY v. WARDEN OF THE MARYLAND PENITENTIARY. Application(Adv.).
• Court: Maryland Court of Appeals

Page 600

214 Md. 600

133 A.2d 421

John E. KIRBY v. WARDEN OF THE MARYLAND PENITENTIARY.

Application No. 9 (Adv.).

Court of Appeals of Maryland.

June 26, 1957.

Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND, and PRESCOTT, JJ.

HAMMOND, Judge.

This is an application for leave to appeal from the denial of a writ of habeas corpus by Judge Manley of the Supreme Bench of Baltimore City. On May 17, 1956, an indictment was filed in the Criminal Court of Baltimore charging the applicant with robbery with a deadly weapon on August 21, 1948. On June 5, 1956, a second indictment was returned against him charging him with the same offense on August 6, 1948. He was found guilty on each indictment and given a sentence of twenty years for each conviction, the sentences to run consecutively.

The applicant contends that his constitutional rights were violated in that he did not receive a preliminary hearing, was not confronted by witnesses against him and was not given a speedy trial in spite of his repeated demands. This Court has said often that failure to hold a preliminary hearing does not vitiate a criminal trial and cannot be raised on habeas corpus, Pritchard v. Warden, 209 Md. 662, 121 A.2d 696; Wagner v. Warden, 205 Md. 648, 109 A.2d 118; and the allegation that he was denied the right to be confronted by his accusers is of no merit since this goes only to the regularity of the proceedings and not to the jurisdiction of the court. Tyler v. Warden, 206 Md. 635, 109 A.2d 919; Hickman v. Warden, 203 Md. 668, 99 A.2d 730.

The applicant was not tried until July 1956 for offenses committed in August 1948. During this time the applicant was serving a sentence of nine years in the Federal penitentiary at Atlanta, Georgia, dating from November 22, 1948. The record shows that on or about November 1, 1951, he wrote from Atlanta to Judge Warnken of the Supreme Bench of Baltimore, requesting that he 'be brought to trial or that the warrant be declared void'. Apparently Judge Warnken forwarded his request to the State's Attorney's office, since their records show that on November 7, 1951, Mr. William H. Maynard, Deputy State's Attorney, wrote Kirby as follows: 'Dear Sir:

'Judge S. Ralph Warnken has turned over to me for reply your letter of November 1.

'The Detective Department advises me that a detainer has been lodged against you * * * for offenses committed by you in this city in 1948.

'In regard to your complaint that you were not brought from Washington to Baltimore to stand trial before you were sent to the Federal Prison in Atlanta, the answer is that the Federal authorities in Washington refused to turn you over to the Baltimore police for trial. As soon as you are released from the Federal Prison in Atlanta arrangements will be made to return you to Baltimore so that you may have the speedy trial which you request.' The applicant alleges that he made similar requests for a speedy trial during 1952 and 1953, but no action was taken by the State until after his release from the Federal Prison in April 1956.

We assume, without deciding, that there is an obligation upon the State prosecuting authorities to...