Austin v. Director of Patuxent Institution

OppenheimeR, J., delivered the opinion of the Court. On September 11, 1961, the Grand Jury for Cecil County indicted the petitioner on two counts: (1) assault and intent to ravish and carnally know; and (2) simple assault. On October 4, 1961, petitioner was found guilty on both counts and sentenced by Judge Rollins to 30 years. The sentence was subsequently reduced to 20 years.

On January 21, 1963, an order for petitioner’s examination at Patuxent to determine whether he was a defective delinquent was passed. On December 5, 1963, Chief Judge J. DeWeese Carter granted petitioner a new trial under the Post Conviction Procedure Act based upon the fact that at his trial, prior to verdict, his previous criminal record was reviewed by the court. Petitioner was arraigned before Judge Keating, at which time he entered a plea of not guilty and elected a court trial. Petitioner was found not guilty under the first count and guilty under the second count of the original indictment, and sentenced to 10 years.

On January 17, 1964, another order was signed transferring petitioner to Patuxent for a determination of whether petitioner was a de ³¹⁶ fective delinquent. A motion for reduction of sentence was denied on January 27, 1964. In March, 1964, petitioner filed a petition for Post Conviction relief with Judge Rasin and a subsequent amendment to that petition was allowed. After hearing, Judge Rasin filed an opinion and order dismissing the petitioner’s application for relief.

The petitioner, through his counsel, in this application for leave to appeal from that order, sets forth eight grounds to support his application. The petitioner’s first contention is that at his trial before Judge Keating it was error to convict him on the second count charging him with assault after he had been found not guilty of assault with intent to rape. He contends that the two offenses are merged and that the court’s action constitutes double jeopardy. The double jeopardy protection of the Fifth Amendment is not transmitted to the States through the Fourteenth Amendment.

Eggleston v. State, 209 Md. 504, 513 , 121 A. 2d 698 (1956); see also Palko v. Connecticut, 302 U. S. 319 (1937). Nor is it a ground under the Post Conviction Procedure Act. Best v. Warden, 235 Md. 633 (1964). If the double jeopardy protection applied, however, it would not avail petitioner in this case.

In order to sustain a conviction under the first count, there would have to have been evidence of an assault together with evidence of an intent to ravish and carnally know. Under the second count, there had to be only sufficient evidence to show an assault. The trial judge may well have found, as he apparently did, that there was not sufficient evidence of intent to ravish and carnally know but that there was sufficient evidence of an assault. The judgments are not inconsistent.

Petitioner’s second, fourth and seventh contentions assert that certain medical reports in respect of his mental state and certain statements about his character and mental health, which were prejudicial to him, were improperly admitted and thereafter improperly