Casey v. Warden of Maryland Penitentiary

Marbury, C. J., delivered the opinion of the Court. This is an application for leave to appeal from the denial of a writ of habeas corpus by Judge Charles C. Marbury in the Circuit Court for Prince George’s County. Judge Marbury denied the writ because the application was based upon the same reasons contained in an applica ⁶⁴⁶ tion previously made to Judge John T. Tucker of the Supreme Bench of Baltimore. On February 15, 1949, while the applicant was serving a four-year sentence for larceny in the Baltimore City Jail, he attempted to escape from that institution.

He was tried in the Criminal Court of Baltimore, was found guilty of an attempt to escape, and was sentenced on March 16, 1949, for a term of ten years, to begin at the expiration of his then current sentence in the city jail. He has completed the earlier sentence and is now serving the ten-year sentence in the Maryland Penitentiary. His contentions are that if this sentence was passed under the common law, it was excessive and constitutes cruel and unusual punishment, and, if it was imposed under the statute, it could not have exceeded two years. The Code, 1947 Supplement, Article 27, Sec. 147, provides for a penalty of not more than ten years for escape, but this section does not include an attempt to escape.

Article 27, Sec. 801, provides for both an escape and an attempt to escape, and fixes the term of imprisonment at not less than three months, nor more than one-half of the entire term for which the person convicted had been sentenced prior to his escape, or effort to escape. That section, however, was passed by the Act of 1916, Chapter 211, and is part of the law relating to the convict road force. It is clearly applicable only to escapes, or attempts to escape, by a prisoner while a member of the road force. Attempt to escape is a common law misdemeanor, and the penalty for that offense is in the reasonable discretion of the court, subject only to the exercise of executive clemency.

Hooper v. Warden, 190 Md. 723 , 60 A. 2d 183 . Owens v. Warden, 190 Md. 737 , 60 A. 2d 184 . The applicant cites the old case of State v. Doud, 7 Conn. 384 , decided in 1829, for the