Opinion
[App. No. 35, September Term, 1960.]
Decided November 15, 1960.
POST CONVICTION PROCEDURE ACT — Improper Identification At Line-Up Alleged. A claim of improper identification at a line-up is an irregularity in a preliminary investigative procedure which cannot be reviewed in a collateral proceeding. Rule applied in a post conviction case. pp. 682-683
POST CONVICTION PROCEDURE ACT — Claim That Co-Defendant Had Stated That Petitioner Was Not One Of Criminals Goes To Guilt Or Innocence. A contention that a co-defendant had stated that the petitioner in this post conviction case was not one of the criminals would raise a question of guilt or innocence for the trier of facts to determine, but was reviewable only on a motion for a new trial or a direct appeal. p. 683
POST CONVICTION PROCEDURE ACT — Trial Transcript — Time For Direct Appeal Had Expired Before Requested. There was no merit to a claim that a petitioner for post conviction relief should have been furnished with a copy of the trial transcript immediately after trial, on the ground of indigency, where he made no request therefor until after the time for a direct appeal had expired. p. 683
POST CONVICTION PROCEDURE ACT — Jury Trial Not Denied — Election Through Counsel To Be Tried By Court, And No Seasonable Objection By Petitioner. There had been no denial of a jury trial to the petitioner who brought this post conviction case, where he elected (through his counsel) to be tried by the court. Since he failed to object seasonably to the election made on his behalf, he thereby waived the right to thereafter raise the question. p. 683
POST CONVICTION PROCEDURE ACT — Application For Leave To Appeal — Contentions Raised For First Time On, Not Before Court. Contentions raised for the first time on application for leave to appeal in a post conviction case are not properly before this Court, and will not be considered. p. 683
J.E.B.
Decided November 15, 1960.
John Chislom, Jr., instituted a proceeding under the Post Conviction Procedure Act, and from a denial of relief, he applied for leave to appeal.
Application denied.
Before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
This is an application for leave to appeal from the order denying the applicant post conviction relief from his conviction for robbery. All of the contentions raised below were clearly without substance.
The claim of the petitioner that he had not been properly identified at the line-up of suspects was an irregularity in a preliminary investigative procedure which cannot be reviewed in a collateral proceeding. Rice v. Warden, 221 Md. 604, 156 A.2d 632 (1959).
The contention that a co-defendant had stated that the petitioner was not one of the three robbers would raise a question of guilt or innocence for the trier of facts to determine, but was reviewable only on a motion for a new trial or a direct appeal. Barbee v. Warden, 220 Md. 647, 151 A.2d 167 (1959).
Though the petitioner had not requested a copy of the trial transcript until after the time for a direct appeal had expired, he contends — because he was an indigent — that it was error not to furnish him with a copy immediately after trial. The contention has no merit. See Brown v. Warden, 221 Md. 582, 155 A.2d 648 (1959).
The claim that the petitioner had been denied a jury trial is contrary to the facts. The record shows that the petitioner (through his counsel) elected to be tried by the court. Since he failed to seasonably object to the election made on his behalf, he thereby waived the right to thereafter raise the question. Cf. Galloway v. Warden, 221 Md. 611, 157 A.2d 284 (1960).
The other contentions raised for the first time in this Court, even if they had substance, are not properly before us, and will not be considered.
Application denied.