Winegard v. Warden of the Md. Penitentiary

• Decision Date: 07 December 1949
• Docket Number: 10.
• Parties: WINEGARD v. WARDEN OF THE MARYLAND PENITENTIARY.
• Court: Maryland Court of Appeals

69 A.2d 685

194 Md. 699

WINEGARD v. WARDEN OF THE MARYLAND PENITENTIARY.

No. 10.

Court of Appeals of Maryland

December 7, 1949

Randall Winegard brought habeas corpus proceedings against the Warden of the Maryland Penitentiary to secure petitioner's release from custody.

The Trial Court entered an order remanding petitioner after hearing on writ of habeas corpus, and petitioner applied for leave to appeal.

The Court of Appeals, Per Curiam, denied the application, holding that mere lack of right of appeal in forma pauperis in criminal prosecutions did not entitle petitioner to writ of habeas corpus.

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

PER CURIAM.

This is an application for leave to appeal from an order remanding petitioner after hearing on a writ of habeas corpus. Petitioner is imprisoned under sentence of twenty years apparently for robbery with a dangerous or deadly weapon Code, Art. 27, sec. 558, and two concurrent ten year sentences for other offenses. In 1944 he and his brother and another were jointly indicted, tried and convicted. At the trial he was represented by counsel, who also represented his brother. At the hearing on habeas corpus, and on this application for leave to appeal, he is represented by different counsel. The record contains a transcript of the hearing on habeas corpus but no copy of the proceedings indictments or docket entries in the Criminal Court and no statement by the judge of the grounds of the application for habeas corpus, the questions involved and the reasons for remanding petitioner. 1947 Supplement, Art. 42, sec. 3B.

Petitioner's grounds for application for habeas corpus or for leave to appeal are that: (1) the sentence is void because it was imposed 'during a luncheon recess' and 'before the public had been given an opportunity to return to the court room', and while the court was not in session; (2) the statute, Art. 27, sec. 558, is unconstitutional because it permits cruel and unusual punishment; (3) trial by jury cannot be waived and Rose v. State, 177 Md. 577, 10 A.2d 617, should be overruled; (4) false testimony was 'deliberately used' by State officials to obtain his conviction; (5) his conviction was also due to mistaken identity; (6) he was unable to appeal from his conviction because of expense and lack of provision in Maryland for appeal in forma pauperis in a non-capital case. For aught that...