Roberts v. Warden, Md. Penitentiary

Decision Date05 May 1966
Docket NumberNo. 78,78
Citation219 A.2d 254,242 Md. 459
PartiesRobert ROBERTS v. WARDEN, MARYLAND PENITENTIARY. Post Conviction
CourtMaryland Court of Appeals

Before PRESCOTT, C. J., and HAMMOND, HORNEY, MARBURY, OPPENHEIMER, BARNES, and McWILLIAMS, JJ.

MARBURY, Judge.

We adopt the reasons set forth in the opinion of Judge Jones in the court below denying post conviction relief. However, the answers to two contentions raised by the petitioner require additional amplification.

The first point needing additional discussion is petitioner's contention that the twenty year consecutive sentences imposed by Judge Carter in the Criminal Court of Baltimore under the second counts of indictments Nos. 506 and 507 (the simple assault counts) are illegal, in that the sentences under these counts could not exceed the statutory maximum of fifteen years for the statutory crime of assault with intent to murder. As pointed out by Judge Jones, this same contention was specifically rejected by this Court in Roberts v. Warden, 221 Md. 576, 580, 155 A.2d 891, because petitioner had failed to appeal the trial court's adverse determination of this matter and thereby the sentence had been finally litigated so as to preclude post conviction relief. In that case we stated that 'failure to appeal is a right which the petitioner could, and did, waive. Jackson v. Warden, 218 Md. 652, 146 A.2d 438.' But assuming that subsequent decisions by this and federal courts have limited the thrust of waiver, petitioner's contention is without substantive merit because as stated by Judge Horney, speaking for the Court in Gleaton v. State, 235 Md. 271, 277, 201 A.2d 353:

'There is * * * in this State no statutory limitation on the penalty which may be imposed for simple assault, and there was none at common law. Heath v. State, 198 Md. 455, 467, 85 A.2d 43 (1951); Apple v. State, 190 Md. 661, 668, 59 A.2d 509 (1948). Nor do we construe the penal limits imposable for the statutory assaults as implying a legislative policy to confine sentences for common law assault to not more than those prescribed for the statutory assaults. Statutes in derogation of the common law are strictly construed, and it is not to be presumed that the legislature by creating statutory assaults intended to make any alteration in the common law other than what has been specified and plainly pronounced. Dwarris on Statutes, 695. The matter of imposing sentences is left to the sound discretion of the trial court, and the...

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35 cases
  • Thomas v. State
    • United States
    • Maryland Court of Appeals
    • September 1, 1992
    ...for common law assault against both constitutional and legal attacks...." 333 Md. at 98, 634 A.2d at 8. A case on point is Roberts v. Warden, 242 Md. 459, 219 A.2d 254, cert. denied, 385 U.S. 876, 87 S.Ct. 156, 17 L.Ed.2d 104 (1966), where the defendant pled guilty to two counts of common l......
  • State v. Lancaster
    • United States
    • Maryland Court of Appeals
    • September 1, 1991
    ...and unusual punishment. Sentences of twenty years' imprisonment for common law assault have been upheld by this Court. See Roberts v. Warden, 242 Md. 459, 219 A.2d 254, cert. denied, 385 U.S. 876, 87 S.Ct. 156, 17 L.Ed.2d 104 (1966); Adair v. State, 231 Md. 255, 189 A.2d 618 (1963). Assault......
  • Walker v. State
    • United States
    • Court of Special Appeals of Maryland
    • December 6, 1982
    ...common law assault against both constitutional and legal attacks. Adair v. State, 231 Md. 255, 189 A.2d 618 (1963); Roberts v. Warden, 242 Md. 459, 219 A.2d 254 (1966); 10 Brown v. State, 38 Md.App. 192, 379 A.2d 1231 (1977); Raley v. State, 32 Md.App. 515, 527-528, 363 A.2d 261 (1976); and......
  • Robinson v. State
    • United States
    • Maryland Court of Appeals
    • April 28, 1999
    ...to make any alteration in the common law other than what has been specified and plainly pronounced." Id. See also Roberts v. Warden, 242 Md. 459, 460-61, 219 A.2d 254, 255, cert. denied, 385 U.S. 876, 87 S.Ct. 156, 17 L.Ed.2d 104 (1966)(holding that creation of statutory assaults was not in......
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