Opinion
[App. No. 153, September Term, 1963.]
Decided July 29, 1964.
POST CONVICTION PROCEDURE ACT — Whether There Was An Illegal Search Held Immaterial In Criminal Prosecution, Where No "Fruits" Of Any Search Were Offered At Trial. p. 674
POST CONVICTION PROCEDURE ACT — Alleged Denial Of Right To Call Counsel Or Family — Applicant Made No Mention At Hearing Below Of Having Requested Anyone To Make Such Calls Or To Permit Him To Do So — Claim Of Failure To Advise Of Right To Have Counsel — Under Circumstances Of This Case, Applicant Failed To Sustain Allegation. p. 674
POST CONVICTION PROCEDURE ACT — Claim That Applicant Was Not Informed That Statement Which He Signed Could Be Used Against Him — No Merit To Claim. p. 674 Decided July 29, 1964.
Thomas Harris Hornes instituted a proceeding under the Post Conviction Procedure Act, and from a denial of relief, he applied for leave to appeal.
Application denied.
Before the entire Court.
In his application for leave to appeal, the applicant raised nine contentions. Judge Carter, in his opinion, dealt fully and properly with all of them except 2, 3 and 5. We, therefore, supplement his opinion as follows:
2. "That his home was illegally searched." No "fruits" of any search were offered at his trial; hence if there were an illegal search of his home, it was an immaterial matter in his criminal prosecution.
3. "That he was denied the right to call counsel or his family and that he was not advised of his rights to have counsel." At his hearing below, applicant made no mention of having requested anyone to call a lawyer or his family, or to permit him to do so. With reference to the allegation that he was not advised of his right to have counsel, the allegation does not state the time to which it refers (he was represented by court-appointed attorneys at his trial and the hearing herein below). At the hearing below, applicant's counsel asked no questions concerning this allegation, and no other evidence was produced concerning it. He pleaded guilty at his trial and freely testified at his hearing herein that he was guilty of the offense charged. Under these circumstances, we hold that the applicant failed to sustain the allegation. Compare Escobedo v. State of Illinois, 378 U.S. 478.
5. "That he was not informed that the statement which he signed could be used against him." If we assume, without deciding, that this allegation, if true, might entitle applicant to relief, no evidence was adduced at the hearing below concerning it. We cannot assume a bald, unsupported allegation in the petition to be true; hence there is nothing before us (with reference to this allegation) for determination.
For these reasons and those contained in Judge Carter's opinion with reference to applicant's other contentions, the application will be denied.
Application denied.