State ex rel. Shatzer v. Warden of House of Correction

• Decision Date: 09 March 1949
• Docket Number: 24.
• Citation: 64 A.2d 711,192 Md. 728
• Parties: STATE ex rel. SHATZER v. WARDEN OF HOUSE OF CORRECTION.
• Court: Maryland Court of Appeals

64 A.2d 711

192 Md. 728

STATE ex rel. SHATZER v. WARDEN OF HOUSE OF CORRECTION.

No. 24.

Court of Appeals of Maryland

March 9, 1949

Habeas corpus proceeding by State of Maryland on the relation of Melvin Leroy Shatzer, against the Warden of the Maryland House of Correction, to secure the relator's release from custody. A judgment refusing the writ of habeas corpus was rendered, and the relator applies for leave to appeal.

Application denied.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

PER CURIAM.

This is an application for leave to appeal from refusal of a writ of habeas corpus. Petitioner is imprisoned under sentence of six years and nine months for burglary, house-breaking, larceny and receiving stolen goods. He had previously been sentenced for nine years for the same offenses, but had been released on habeas corpus, because the court in which he had been convicted was without jurisdiction to try him upon a criminal information by reason of non-compliance with mandatory requirements of section 637 of Article 27 of the Code. He was then tried upon indictments, convicted and sentenced. He says his constitutional right has been violated by double jeopardy. The record contains no copies of docket entries, informations, indictments or proceedings at his trials.

The application is denied on Judge Bailey's opinion, which is as follows: 'By order of this Court passed on October 20 1948, in No. 2 Miscellaneous, September Term, 1948, the petitioner was released from the custody of the Warden of the Maryland House of Correction. This ruling was based upon the finding that the Circuit Court for Prince George's County was without jurisdiction to try him upon a criminal information because of a failure to comply with the mandatory provisions of Section 637, of Article 27, 1947 Cumulative Supplement of the Code. In the meantime he had been indicted by the Grand Jury of Prince George's County upon the same charges covered by the criminal information. Upon his return to Prince George's County he was tried upon the indictments, convicted and sentenced to the Maryland House of Correction.

'The instant petition asks for his release because of former jeopardy. There are two reasons why the petition should be denied in this case. In the first place, the defense of former jeopardy should have been raised by plea at the time of trial. Hochheimer's Criminal Law, Second...