Opinion
[H.C. No. 3, October Term, 1952 (Adv.).]
Decided July 15, 1952.
HABEAS CORPUS — Pistol Used In Robbery Was Broken and Empty — Sentence Cruel and Unusual — Counsel Rendered No Help. Contentions of a petitioner for a writ of habeas corpus, who had been convicted of robbery with a deadly weapon and sentenced for 40 years, that the pistol he used was broken and empty, that his sentence violated the constitutional prohibition of cruel and unusual punishment, and that his counsel rendered no help whatever, without further allegations, cannot be made on habeas corpus. pp. 656-657
Decided July 15, 1952.
Habeas corpus proceeding by Ben C. Gillum against Warden of Maryland Penitentiary. From a refusal of the writ, petitioner applied for leave to appeal.
Application denied.
Before MARBURY, C.J., and DELAPLAINE, COLLINS HENDERSON and MARKELL, JJ.
This is an application for leave to appeal from denial of a writ of habeas corpus. Petitioner is imprisoned under sentence for forty years for robbery with a deadly weapon and attempted robbery with a deadly weapon. He says he did rob, and attempt to rob, with a pistol which was "broken and empty" and therefore was not a deadly weapon. He also contends that his sentence violated the constitutional prohibition of cruel and unusual punishment. He alleges that his "court-appointed counsel * * * rendered no help whatever. In his failure to question the legality of the faulty indictment [which is not in the record] and judgment, the defense counsel acted in a manner inimical to the best interests of the appellant". He does not allege fraud, bad faith or collusion with any state's officer, or that he complained to the trial court against his counsel or made any attempt to move for a new trial or to appeal. All the contentions made by petitioner, as to the nature of his crimes or the legality of his sentence — or his trial — can be made on motion for a new trial or on appeal and not on habeas corpus. Loughran v. Warden, 192 Md. 719, 64 A.2d 712.
Application denied, with costs.