Arrington v. Warden of the Maryland Penitentiary

Henderson, J., delivered the opinion of the Court. In this application for leave to appeal from a denial of post conviction relief, the petitioner was convicted of first degree ⁶⁷⁴ murder and sentenced to death. The judgment was affirmed on appeal. Arrington v. State, 228 Md. 143 .

A petition for post conviction relief was filed and denied by Judge Harris, but no application for leave to appeal was filed. A second petition was later denied by Judge Oppenheimer, from which the present application was filed. All except the last ground were fully treated by Judge Harris, but the allegation that the petitioner had no counsel at the preliminary hearing was novel, and was dealt with by Judge Oppenheimer. It appears that a preliminary hearing was held on January 17, 1961, before Magistrate Rosen, who informed the petitioner that the purpose of the hearing was not to determine his innocence or guilt but simply “to determine whether or not it is a prima jade case to hold you for the action of the grand jury.

Are you guilty or not guilty?” The petitioner responded: “not guilty.” When he was arraigned on March 20, 1961, he pleaded “not guilty.” At that time he was represented by counsel, but not at the preliminary hearing. The petitioner relies upon the case of White v. Maryland, 373 U. S. 59 , reversing White v. State, 227 Md. 615 , but we think the case is readily distinguishable. In the White case the accused had pleaded guilty at the preliminary hearing, and the guilty plea was put in evidence at the trial without objection. The Supreme Court, in its per curiam opinion, held Hamilton v. Alabama, 368 U. S. 52 , controlling, and said: “Whatever may be the normal function of the ‘preliminary hearing’ under Maryland law, it was in this case as ‘critical’ a stage as