Loughran v. Warden of Maryland House of Correction

PER CURIAM. This is an application for leave to appeal from an order remanding petitioner after hearing on a writ of habeas corpus. Petitioner is imprisoned under sentence of eight months for “larceny after trust”. Acts of 1945, ch. 831, Code, 1947 Supplement, Art. 27, section 401A, makes punishable “any person who shall be entrusted with the possession of goods or things of value for the purpose of applying the same for the use and benefit of the owner or person who delivered the goods and things who shall fraudulently convert the same to his own use”.

Petitioner ⁷²² says that in September, 1947, he sold a house and delivered possession on receipt of a deposit of $1,200, and because of a dispute between himself and a partner, who refused to, execute a' deed, has been unable to give a deed and has not returned the deposit; after trying since April to “settle” the purchaser’s claim and civil litigation by refunding the $1,200 less a deduction for rent for possession by the purchaser, and after receipt of two letters threatening criminal proceedings if the $1,200 was not refunded on or before August 9th, which he was not able to do, he “took [his] vacation in the latter part of August and returned right after Labor Day and found the officers waiting for [him] with a warrant.” His grounds for application for the writ were, and he proffered testimony to show, that: his acts do not constitute a crime but involve only a “civil controversy”; there was no competent or other evidence before the grand jury or at the trial legally sufficient to show any crime; the Act of 1945 does not cover petitioner’s acts and (if it does) is unconstitutional because it violates the prohibition against imprisonment for debt (Maryland Constitution, art. 3, sec. 38) and thereby deprives petitioner of the equal protection of the laws and because it is too “vaguely worded” to define a crime; trial by jury cannot be waived in Maryland, and Rose v. State, 177 Md. 577 , 10 A. 2d 617 , should be overruled; at the trial petitioner’s fundamental right was violated by the prosecutor by improperly and untruthfully indicating to the court that petitioner was wanted by the Federal Bureau of Investigation as a criminal; consequently the indictment, trial and sentence were all a nullity and the trial a “sham and a pretense”, and are reviewable on habeas corpus. The judge refused petitioner’s proffers of testimony and remanded petitioner, for the reason that the grounds for application for the writ all amounted to an attempt to retry the criminal case, which we have repeatedly held cannot be done. State v. Glenn, 54 Md. 572 ; Olewiler v. Brady, 185 Md. 341 , 44 A. 2d 807 ; Bernard v. Warden of Maryland House of Correction, 187 Md. 273 , 49 A. 2d ⁷²³ 737; Rountree v. Wright, 189 Md. 292 , 55 A. 2d 847 , and many other cases. This action was correct.

The record contains a transcript of the hearing on habeas corpus but no copy of the indictment or proceedings in the Criminal Court. Habeas corpus cannot serve the purpose of a demurrer to an indictment. Dimmick v. Tomkins, 194 U. S. 540, 552 , 24 S. Ct. 780 , 48 L. Ed. 1110 ; cf. Hickman v. Brady, 188 Md. 103 , 52 A. 2d 72 . We express no opinion as to the construction of the Act of 1945.

The legal sufficiency of evidence before the grand jury, if reviewable at all, is not reviewable on habeas corpus. Bernard v. Warden of Maryland House of Correction, 187 Md. 273, 280 , 49 A. 2d 737 . The competency of evidence before the grand jury is not reviewable at all. Pick v. State, 143 Md. 192 , 121 A. 918 .

Section 17 of Chapter 6 of the Acts of 1880, Code of 1939, art. 42, sec. 16, provided that whenever any person charged with violation of any statute is discharged under the writ of habeas corpus upon the ground that the statute is unconstitutional, the case should be reviewed by this court. Most of the cases so reviewed by this court were cases in which convictions by justices of the peace had on habeas corpus been held void on constitutional grounds. State v. Glenn, 54 Md. 572 ; Beall v.