State ex rel. Eyer v. Warden of Md. Penitentiary

• Decision Date: 21 May 1948
• Docket Number: 38.
• Citation: 59 A.2d 745,190 Md. 767
• Parties: STATE ex rel. EYER v. WARDEN OF MARYLAND PENITENTIARY.
• Court: Maryland Court of Appeals

59 A.2d 745

190 Md. 767

STATE ex rel. EYER v. WARDEN OF MARYLAND PENITENTIARY.

No. 38.

Court of Appeals of Maryland

May 21, 1948

Habeas Corpus proceeding by the State, on the relation of Harry Eyer, against the Warden of the Maryland Penitentiary.Writ was refused, and the relator applies for leave to appeal.

Application denied.

Before DELAPLAINE, COLLINS, HENDERSON and MARKELL JJ.

MARKELL Judge.

This is an application for leave to appeal from refusal of a writ of habeas corpus.Petitioner is imprisoned under consecutive sentences of fifteen years for robbery with a deadly weapon and eighteen months each in two cases for assault with intent to murder a police officer.On March 29, 1941 three 'hold-up men' participated in a robbery and later fired at policemen in effecting their escape.The same day petitioner was arrested and subsequently charged with the robbery.On April 2d he was indicted for robbery and assault.On April 4th he was arraigned in the robbery case and demurred to the indictment.On April 7th the demurrer was argued, on petitioner's objection the 'aliases' incorporated in the indictment were ordered stricken, and petitioner then pleaded not guilty and prayed a jury trial.He says, 'Offer of counsel was made by the court which petitioner declined due to his confused state of mind.Prior to the arraignment, he had been kept sleepless for three days and nights by the police in the Central Police Station and thereafter had been isolated in the Baltimore City Jail in a separate cell and had been kicked and mistreated by the police.His mind was confused at the time of arraighment and the entire setting seemed to be hostile to him.'Trial was begun on the morning of April 9th and concluded late the next night.On May 16, 1941petitioner requested appointment of counsel in the assault cases and the court appointed able counsel, especially experienced in criminal cases.On May 19th and 20th the assault cases were tried before the court without a jury, with a stipulation that the testimony in the robbery case should be considered as testimony in the assault cases, and petitioner was found guilty.He did not testify and offered no testimony on his behalf.On May 29, 1941 sentence was imposed in the three cases.In all three cases apparently the only issue was identification of the 'hold-up men', i e., of petitioner as one of them.He asserts an alibi, viz that at the time of the robbery he had been 'given a lift' from Washington to Baltimore by an unknown driver of an unknown automobile, but he was not able to produce the driver at the robbery trial--and apparently never has located him--and he himself did not testify or offer to testify to this alibi.

Petitioner now alleges that he is confined without due process of law on the judgment in the robbery case, because (1)he made no intelligent and competent waiver of counsel, (2)the court refused to grant him an opportunity to prepare for his defense, (3) to permit him to testify on his own behalf or (4) to make an unsworn statement to the jury, and (5) the 'manner and order of consecutive sentences' was illegal.The fifth ground has not been elaborated or explained.

The first, third and fourth grounds were the basis of a habeas corpus case before Judge Chesnut, heard in February 1942.In that casepetitioner testified and on March 4, 1942 the writ of habeas corpus was dismissed on the merits (notwithstanding failure to exhaust State remedies) with an opinion published in the Daily Record on March 18, 1942.On June 27, 1942 on appeal this decision was affirmed on the merits, after argument by able counsel for petitioner appointed by the Circuit Court of Appeals.Eyer v. Brady, 4 Cir.,128 F.2d 1012, certiorari deniedNovember 9, 1942, 317 U.S. 679, 63 S.Ct. 157, 87 L.Ed. 545.In June, 1943 and November, 1943 hearings on writs of habeas corpus were held before Judges Melvin and Grason, respectively, of this court, and petitioner was remanded.On January 4, 1944 Judge Marbury of this court denied a petition for a writ of habeas corpus on the second, third and fourth grounds now alleged, with an opinion published in the Daily Record on January 13, 1944.Petitioner says substantiation of his present assertions of fact will be found in his testimony before Judge Melvin.What issues were heard before Judge Grason does not appear.

A transcript of the proceedings in the robbery case is not filed with the petition, though petitioner says copies of the transcript of testimony were furnished, and a transcript of all other proceedings offered, to counsel in the Circuit Court of Appeals'through the courtesy and by the order' of the trial judge, and an excerpt from the proceedings is quoted.Nevertheless petitioner complains of 'most flagrant errors' in the stipulation as to facts by counsel in the appellate court, and asserts that 'versions, garbled beyond my personal knowledge as to submitted and undisputed facts, emerge weird and unrecognizable when shaped into 'opinions".Petitioner's complaints of 'errors' in the stipulation relate to the third and fourth grounds of the instant petition.Most of these complaints are arguments, not as to the accuracy of the stipulation but as to the relevancy of the assault cases to the robbery case.The only alleged inaccuracies in the stipulation are (a) that the robbery trial lasted two days, not three, (b) that at the trial petitioner was not asked by the judge whether he wished to take the witness stand when testimony was being taken, or informed that he could do so, and (c) that during his argument before the jury the court, of its own motion and not on objection of the State, stopped him making statements of fact not based on evidence but purporting to be...