Opinion
[H.C. No. 39, October Term, 1956.]
Decided November 30, 1956.
HABEAS CORPUS — Whether Nail File Lethal or Deadly Weapon. Even if it was error to hold in a criminal trial that a nail file was a lethal or deadly weapon, such an error is not reviewable on habeas corpus. p. 651
CRIMINAL LAW — Assault with Intent to Murder — Lethal or Deadly Weapon Not Necessary. The use of a lethal or deadly weapon is not an essential ingredient of assault with intent to murder. p. 651
HABEAS CORPUS — Recantation of Testimony. The mere recantation of testimony by a witness furnishes no basis for the issuance of a writ of habeas corpus, even if her testimony at the criminal trial was false. p. 652
HABEAS CORPUS — Right of Appeal — Advising Petitioner of. Petitioner was not entitled to a writ of habeas corpus on the ground that he was not advised of his right of appeal, where he did not allege that any State official denied the right of appeal, or that he made any effort to appeal at the conclusion of the trial or subsequently. Moreover, a further assertion contradicted his claim that he was not so advised. p. 652
J.E.B.
Decided November 30, 1956.
Habeas corpus proceeding by Floyd Calhoun Finley against the Warden of the Maryland House of Correction. From a refusal of the writ, petitioner applied for leave to appeal.
Application denied.
Before BRUNE, C.J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.
This is an application for leave to appeal from the denial of a writ of habeas corpus. The petitioner was convicted in the Circuit Court for Anne Arundel County of assault with intent to murder, and sentenced to nine years in the House of Correction. He was represented by an attorney appointed by the court.
The petitioner contends that the trial court was in error in holding that the nail file with which he stabbed his estranged wife was a lethal or deadly weapon. It is sufficient to observe that if this was error, it is not such an error as would be reviewable on habeas corpus. Moreover, it is clear that the use of a lethal or deadly weapon is not an essential ingredient of the crime charged.
The petitioner further contends that the prosecuting witness, after the trial, admitted that she "could not say for sure" that the petitioner threatened to kill her, as she had testified at the trial. The mere recantation of testimony furnishes no basis for the issuance of a writ of habeas corpus, even if her testimony at the trial was false. Thanos v. Superintendent, 204 Md. 665; Billman v. Warden, 197 Md. 683. Cf. Madison v. State, 205 Md. 425, 434.
Finally, the petitioner contends that he was not advised of his right of appeal. This falls short of an allegation that he was denied the right of appeal by any State official. Moreover, the allegation is contradicted by his further assertion that the attorney appointed by the court declined to take an appeal at the conclusion of the trial. There is no allegation that the petitioner made any effort to appeal at that time or subsequently.
Application denied, with costs.