Opinion
[H.C. No. 1, October Term, 1947.]
Decided November 13, 1947.
Habeas Corpus — Application for Leave to Appeal Under Code (1947 Supp.), Art. 42, § 3C — Making in Lower Court in Absence of Rule — Rule 49 of Court of Appeals — Counsel — No Time to Get — Guilt or Innocence Not Retriable On.
In the absence of a rule of the Court of Appeals to the contrary, an application for leave to appeal in a habeas corpus case under Code (1947 Supp.), Art. 42, § 3C, may be made through the lower court. p. 718
Rule 49 of the Court of Appeals Rules, adopted October 7, 1947, provides that such application may be filed with the clerk of the Court of Appeals or with the clerk of the lower court. p. 718
If petitioner on appeal alleges that he was not given time to get himself counsel but does not allege that postponement was requested and refused, there is no showing of denial of fundamental rights. p. 718
The question of guilt or innocence cannot be retried on habeas corpus. p. 718
Decided November 13, 1947.
Habeas corpus proceedings by William Jackson against Warden of the Maryland House of Correction. From an order refusing to issue the writ, petitioner appeals.
Order affirmed.
Before MARBURY, C.J., DELAPLAINE, COLLINS, GRASON, HENDERSON, and MARKELL, JJ.
This purports to be an appeal from an order, passed May 23, 1947, refusing to issue a writ of habeas corpus. The order for appeal was dated May 28th, filed in the lower court June 2d and received in this court June 3d. Chapter 625 of the Acts of 1947, which requires an application to this court "for leave to prosecute an appeal" (Art. 42, § 3C), took effect June 1st. Davis v Warden of Maryland House of Correction, 190 Md. 719, 60 A.2d 180, just decided. Whether this act is applicable to an appeal from an order passed before June 1st is not now material. In either view, appeal was taken or application for leave properly made within ten days. In the absence of a rule of this court to the contrary, we think the application for leave to appeal may be made through the lower court, in which an appeal would be entered. Rule 49 of this court now provides that such application may be filed either with the clerk of this court or with the clerk of the lower court. We will assume, without deciding, that this is an appeal under the Act of 1945, c. 702.
Petitioner is imprisoned under sentence of twelve months for assault and battery. He alleges (a) that he acted in self-defense and was not guilty and (b) that he "was not given time to get himself counsel". He does not allege that postponement was requested and refused. There is no showing of denial of fundamental rights. Nance v. Warden of Maryland House of Correction, 189 Md. 112, 53 A.2d 554, 555; cf. Hawk v. Oslon, 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61. The question of guilt or innocence cannot be retried on habeas corpus. Olewiler v. Brady, 185 Md. 341, 344, 44 A.2d 807; Bernard v. Warden of Maryland House of Correction, 187 Md. 273, 49 A.2d 737.
Order affirmed, without costs.