Wagner v. Warden of Md. Penitentiary, 7

• Decision Date: 15 November 1954
• Docket Number: No. 7,7
• Citation: 205 Md. 648,109 A.2d 118
• Parties: Phillp Rowand WAGNER v. WARDEN OF THE MARYLAND PENITENTIARY.
• Court: Maryland Court of Appeals

Page 648

205 Md. 648

109 A.2d 118

Phillp Rowand WAGNER v. WARDEN OF THE MARYLAND PENITENTIARY.

No. 7.

Court of Appeals of Maryland.

Nov. 15, 1954.

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

HAMMOND, Judge.

This is an application for leave to appeal from a denial of the writ of habeas corpus by Judge Moser of the Supreme Bench of Baltimore City. The petitioner was convicted of sodomy in 1953 by the Circuit Court for Allegany County and sentenced to five years in the penitentiary.

The petitioner grounds his application on these points: 1, that he was illegally arrested; 2, that when he had been in jail five days, three bench warrants for his arrest were signed but not actually issued until four days later; 3, that he was illegally in custody for nine days; 4, that although he was accused of a felony, he was never given an opportunity to be confronted by his accusers and never received a preliminary hearing; 5, that a Police Lieutenant obtained his confession on the promise that he would be tried in juvenile court on the charge of contributing to the delinquency of a minor; 6, that although there was doubt as to his sanity, the court did not refer him to a psychiatrist, as provided by Code (1951) Art. 59, Sec. 10; 7, that his counsel induced him to plead guilty; 8, that the court did not take testimony after he had plead guilty; and 9, that the record of his conviction fails to show under which count of the indictment the plea of guilty was entered, and since the second count of each of the three indictments is void for duplicity, the entire conviction must fail.

The first three contentions concern petitioner's arrest and confinement. We have repeatedly held that after trial and conviction the legality of arrest and extent or legality of initial detention cannot be inquired into on habeas corpus. Spence v. Warden, 204 Md. 661, 103 A.2d 345; Bowie v. Warden, 190 Md. 728, 60 A.2d 185; Taylor v. Warden, 201 Md. 656, 92 A.2d 757; Cumberland v. Warden, Md.1954, 109 A.2d 66.

The petitioner's claim that he was denied the right to be confronted by his accusers goes to the regularity of the proceedings and not to the jurisdiction of the court, and cannot be raised on habeas corpus. Sykes v. Warden, 201 Md. 662, 93 A.2d 549; Hickman v. Warden, 203 Md. 668, 99 A.2d 730. The last two cases also decided that failure to hold a preliminary hearing does not vitiate a criminal trial, and cannot be raised on habeas corpus.

The petitioner's contention that he was induced to confess by the promise that he would be tried in juvenile court on a lesser charge will not stand up. He plead guilty in open court, and if his claim were true, he would have waived it by a plea of guilty. It is not to be supposed, represented as he was by counsel, that he was not aware that he was being tried in the criminal court on a charge of sodomy and not in a juvenile court on the charge of contributing to the delinquency of a minor. With this awareness, he voluntarily plead guilty. Under these circumstances, the point could not be raised even on direct appeal, where the scope of appeal is far wider. Banks v. State, 203 Md. 488, 102 A.2d 267.

The...