Opinion
[H.C. No. 19, October Term, 1952.]
Decided December 5, 1952.
HABEAS CORPUS — Counsel — Deprivation of. A petitioner for a writ of habeas corpus who alleges that he has been deprived of counsel has the burden to allege facts tending to show that for want of counsel an ingredient of unfairness operated actively in the process that resulted in his confinement. p. 654
HABEAS CORPUS — Witnesses — Deprivation of — By Refusal of Compulsory Process. The Court of Appeals will not order the discharge of a prisoner on habeas corpus because of denial of compulsory process for attendance of witnesses. Such denial goes only to regularity of proceedings, not to jurisdiction of the Court, and judgment is not void for such an error. pp. 654-655 Decided December 5, 1952.
Habeas corpus proceeding by Howard F. Selby against Warden of Maryland House of Correction. From a refusal of the writ, petitioner applied for leave to appeal.
Application denied.
Before MARKELL, C.J., and DELAPLAINE, COLLINS and HENDERSON, JJ.
Howard F. Selby, who was convicted in the Circuit Court for Montgomery County on the charge of assault with intent to murder and was sentenced to the Maryland House of Correction for the period of five years, applies here for leave to appeal from refusal of a writ of habeas corpus.
Petitioner alleges that he was tried the first time in December, 1950, and the jury were unable to agree; that in December, 1951, his attorney struck out his appearance, and in January, 1952, he requested the Court to appoint counsel for him but his request was denied; that he requested the Court to summon witnesses in his behalf and that request also was denied.
First, petitioner has alleged no facts concerning himself or his case that indicated that appointment of counsel was necessary. The right to appointment of counsel is not an absolute right. It exits only on a showing of facts that make it necessary in the particular case. The burden is on the petitioner to allege facts tending to show that for want of counsel an ingredient of unfairness operated actively in the process that resulted in his confinement. Williams v. Warden of Maryland Penitentiary, 200 Md. 651, 89 A.2d 228; Knott v. Warden of Maryland Penitentiary, 200 Md. 658, 90 A.2d 177.
Secondly, the allegation that petitioner was denied the right to have compulsory process for obtaining witnesses in his favor goes only to the regularity of the proceedings, not to the jurisdiction of the trial court. A judgment of conviction is not void for such an error, and the Court of Appeals will not order the discharge of a prisoner for such an error. Ex parte Harding. 120 U.S. 782, 7 S.Ct. 780, 30 L.Ed. 824.
Application denied, with costs.