Brown v. Sheriff

Markell, C. J., delivered the opinion of the Court. This is an application for leave to appeal from an order remanding petitioner after hearing on a writ of habeas corpus. The petition for habeas corpus alleges that petitioner is unlawfully detained in the county jail, that on July 28, 1952 he was tried before a trial magistrate on the charge of assault and battery and was found guilty and sentenced to 30 days in jail and has served his sentence. Respondent’s answer alleges that petitioner is detained in custody, awaiting the action of the grand jury, by reason of commitments issued by a trial magistrate wherein petitioner is charged with “rape and assault with intent to rape”.

It appears that the alleged offense was committed against a girl 9 years old. The Attorney General treats the charge of “rape” as including or meaning “statutory rape”. (Code, Art. 27, sec. 545). The commitments are not before us.

The ⁶⁶⁴ record, and the judge’s statement (1947 Supp., Art. 42, sec. 3B), contain no testimony or summary of testimony at the trial before the trial magistrate or at the hearing on habeas corpus. Petitioner contends that assault and battery is a necessary element of rape, that conviction of assault and battery merges the lesser offense, assault and battery, in the greater, rape, and bars prosecution for rape under the doctrine of double jeopardy. The lower court held that conviction of rape might bar subsequent