Opinion
[App. No. 31, September Term, 1961.]
Decided January 23, 1962.
POST CONVICTION PROCEDURE ACT — Claim By Petitioner, Convicted Of Assault With Intent To Rob And Sentenced To Ten Years, That It Was Discriminatory, In A Constitutional Sense, To Permit Codefendant, Who Testified For State, To Plead Guilty To Simple Assault, For Which He Was Sentenced To Five Years — Held Too Late To Raise Claim In This Proceeding — Failure To Make Point At Trial Or On Appeal Constituted Waiver. p. 661
J.E.B.
Decided January 23, 1962.
William Roger Proctor 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, HORNEY, MARBURY and SYBERT, JJ.
The applicant here was indicted, along with two others, of assault with intent to rob with a deadly weapon, assault with intent to rob, and simple assault. He was convicted on the second count, sentenced to ten years, and appealed to this Court. Proctor v. State, 223 Md. 394. The only questions raised were concerning an extra-judicial identification made by the victim. The judgment was affirmed. He now seeks to raise for the first time a contention that because the State accepted from Carle, one of his codefendants, a plea of guilty of simple assault, for which he received a sentence of five years, and because Carle testified for the State, the constitutional rights of the applicant were violated. He contends that it was discriminatory, in a constitutional sense, to give Carle an opportunity which was not extended to him.
We think it is too late to raise the point in this proceeding. Failure to make the point at the trial or on appeal constitutes a waiver. Jordan v. State, 221 Md. 134; Lipscomb v. Warden, 225 Md. 634. In so holding, we do not suggest that leniency to a codefendant, or a disparity in sentences, would afford grounds for relief in any event. Barker v. Warden, 208 Md. 662, 665. See also Cothorn v. Warden, 221 Md. 581, 582, and Ellinger v. Warden, 224 Md. 648, 653.
Application denied.