Olewiler v. Brady, No. 38.

• Court: Court of Appeals of Maryland
• Writing for the Court: MARKELL, Judge.
• Citation: 44 A.2d 807
• Decision Date: 30 November 1945
• Docket Number: No. 38.
• Parties: OLEWILER v. BRADY, Warden.

44 A.2d 807

OLEWILER
v.
BRADY, Warden.

No. 38.

Court of Appeals of Maryland.

Nov. 30, 1945.

Appeal from Circuit Court, Prince George's County; Charles C. Marbury, Judge.

Habeas corpus proceeding by Harry C. Olewiler against Patrick J. Brady, Warden, Maryland Penitentiary. From an order refusing to issue a writ of habeas corpus, petitioner appeals.

Affirmed.

44 A.2d 808

Harry C. Olewiler, in pro. per.

William Curran, Atty. Gen., and J. Edgar Harvey, Asst. Atty. Gen., for respondent.

Submitted to MARBURY, C. J., and DELAPLAINE, COLLINS, HENDERSON, and MARKELL, JJ.

MARKELL, Judge.

This is an appeal under section 3C of Article 42 (Acts of 1945, Chapter 702) from an order refusing to issue a writ of habeas corpus. The appellant is confined in the penitentiary under a sentence of life imprisonment for murder. He contends (or means to contend) that he is deprived of liberty without due process of law, and is denied the equal protection of the laws, in violation of the Fourteenth Amendment to the Constitution of the United States.

In substance, his petition aims to allege that: The deceased was shot and killed while committing the ‘felony’ (cf. Bowser v. State, 136 Md. 342, 344, 110 A. 854) of ‘daylight burglary’ (Art. 27, sec. 34), having broken and entered appellant's outhouse and taken a ‘boat pole’ therefrom. He ‘advanced toward appellant in an aggressive manner,’ apparently ‘reaching for a weapon.’ Appellant ‘in taking a backward step stumbled’ and ‘thereby fired’ his rifle. He was ‘seized without a warrant,’ and ‘his rifle was seized at the same time and was introduced as evidence against him at the trial.’ He pleaded not guilty, was tried before a jury, and had the assistance of counsel for his defense. ‘The State exceeded its jurisdiction in jury challenges.’ While on the witness stand he was ‘instructed by the State's Attorney to demonstrate the position in which he was at the moment the shot was fired.’ There was no ‘compelling force’ at the time of the demonstration, and no objection by his counsel. ¹

As grounds for discharge from imprisonment, appellant sets up (1) the maxim that ‘every man's house is his castle’ and the right of self-defense and protection of his property and (2) the privileges against unreasonable searches and seizures and self-incrimination under Articles 26 and 22 of the Declaration of Rights.

These grounds are all without merit. ‘The writ of habeas corpus cannot be made, unless it be by express statute, to perform the functions of a writ of error, in bringing under review a judgment or sentence of a competent tribunal, simply for errors or irregularities in the proceedings, or in the rendition of the judgment or sentence; that must be done by some more direct and appropriate proceeding.’ State v. Glenn, 54 Md. 572, 608. Cf. Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357. Still less can habeas corpus be used to review the verdict of a jury on disputed facts. ‘An imprisonment, under a sentence by a Court or magistrate of competent jurisdiction, is not unlawful, unless the sentence, for some cause to be made apparent, be not merely erroneous but an absolute nullity; though if it be shown to be such nullity, the party is entitled to his immediate discharge.’ State v. Glenn, supra; Cf. Price v. Clawns, 180 Md. 532, 534-537, 25 A.2d 672. Recent Supreme Court cases hold that through violation of certain constitutional rights in criminal procedure a trial court may lose its jurisdiction ‘in the course of the proceedings' and its judgment may therefore be void. Johnson v. Zerbst, supra, 304 U.S. 468, 58 S.Ct. 1024, 82 L.Ed. 1461, 146 A.L.R. 357; Smith v. O'Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 85 L.Ed. 859; Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595; Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363. ² Such violations of constitutional rights do not include mere error as to the number of peremptory challenges of jurors or any of the grounds for discharge set up in the instant case. Cf. Ex parte Hull, 312 U.S. 546, 550-551, 61 S.Ct. 640, 85 L.Ed. 1034. Arrest of a murderer and seizure of the weapon with which the murder was committed is not an unreasonable search or seizure.

44 A.2d 809

Lawrence v. State, 103 Md. 17, 37, 63 A. 96. Appellant's contention as to self-incrimination is ‘an extravagant extension’ of the constitutional privilege, Holt v. United States, 218 U.S. 245, 252, 31 S.Ct. 2, 6, 54 L.Ed. 1021, 20 Ann.Cas. 1138, and of our decision in Allen v. State, 183 Md. 603, 39 A.2d 820. There is no question as to identification of appellant. The demonstration with the rifle (to which he did not object) merely gave him an opportunity to explain and reconcile his defenses of accident and self-defense.

In short, it appears from the petition itself that, if the writ were granted, appellant would not be entitled to any relief.

‘The writ of habeas corpus is a high prerogative writ, given by the common law, and made effective and enforced by statute, the great object of which is the liberation of parties who may be imprisoned or detained without sufficient cause.’ State v. Glenn, supra, 54 Md. 607. ‘It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I.’ Secretary of State for Home Affairs v. O'Brien, [1923] A.C. 603, 609. The principal statute by which it might be enforced, ‘the famous habeas corpus act, 31 Car. II, c. 2,’ was ‘frequently considered as another magna carta of the kingdom.’ Blackstone's Commentaries, III, p. 135.

Chancellor Kilty reported (in 1810) that the statute of 31 car. II was applicable to local circumstances, but was not proper to be incorporated into the statute law of Maryland for the reason that it had...