Opinion
[H.C. No. 13, October Term, 1949.]
Decided December 7, 1949.
Habeas Corpus — Contentions Which Could Have Been Made At Trial De Novo On Appeal from Justice of the Peace, Cannot Be Made on — Case Not Retriable On — Not Proper Remedy Where Appeal Available.
Where contentions made by a petitioner for habeas corpus, who had been tried by a justice of the peace, could have been made at a trial de novo on appeal to a circuit court but no appeal was taken, they cannot be made on habeas corpus. p. 706
A criminal case cannot be retried on habeas corpus and habeas corpus is not a proper remedy where appeal is available. p. 706
Decided December 7, 1949.
Habeas corpus proceeding by Theodore Wright against Warden of Maryland House of Correction. From a refusal of the writ, petitioner applied for leave to appeal.
Application denied.
Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.
This is an application for leave to appeal from refusal of a writ of habeas corpus. Petitioner is imprisoned under sentence, by a Montgomery County justice of the peace, of two years for assault and battery. He alleges that the magistrate denied him "his rights to employ counsel to represent him in court or that the court appoint him counsel"; that he "was brought to trial within forty-eight hours from arrest without his rights of a preliminary hearing and was therefore denied the right to prepare his defense properly"; that he was arrested before a warrant was issued, and that the testimony did not support the charge in the warrant and the commitment because it showed no beating.
By appeal petitioner could have obtained a trial de novo and could have made all the contentions he now makes. His case cannot be retried on habeas corpus, and habeas corpus is not a proper remedy where appeal is available. Loughran v. Warden of House of Correction, 192 Md. 719, 64 A.2d 712.
It is conceivable that even among the relatively minor cases tried before a magistrate, there may be exceptional cases where conviction has been had in disregard of the constitutional rights of the accused and like disregard of his rights may have prevented appeal, and thus the writ of habeas corpus is the only effective means of preserving his rights. Olewiler v. Brady, 185 Md. 341, 345, 44 A.2d 807. No facts are alleged which remotely suggest any such exceptional case.
Application denied, without costs.