McCutheon v. Warden

Bruñe, C. J., delivered the opinion of the Court. William McCutheon, according to his petition for a writ of habeas corpus, was convicted of three charges upon which he ⁶¹⁸ was tried in January, 1951, in the Criminal Court of Baltimore. These were: (1) assault with intent to rape; (2) breaking and entering [burglary]; and (3) being a “rogue and vagabond.” [See Code (1951), Art. 27, Sec. 576.] In July, 1957, he filed a petition for a writ of habeas corpus with Judge Michael Paul Smith, of the Circuit Court for Baltimore County. His petition was denied, and he seeks leave to appeal.

The applicant set up six grounds for the issuance of the writ. He treated as one ground what we state below as his second and third grounds, and we have renumbered his subsequent grounds accordingly. First, he alleges that following his arrest, he was held and interrogated by the police without being advised of his rights. After trial and conviction the extent or legality of the initial detention cannot be raised on habeas corpus.

Wagner v. Warden, 205 Md. 648 , 109 A. 2d 118 ; Szukiewicz v. Warden, 213 Md. 636 , 131 A. 2d 390 . Second, he asserts, without any particularization, perjury by witnesses in statements to the police and at the trial. A bald assertion of perjury, in the absence of any showing that the State knowingly used perjured testimony or conspired to defraud the accused of his rights, is not enough. Smith v. Warden, 213 Md. 643 , 131 A. 2d 392 .

Third, he claims that he was not allowed to confront the witnesses against him during the trial. This allegation, if true, would go to the regularity of the proceedings and would be available on appeal, but not on habeas corpus. Hickman v. Warden, 203 Md. 668 , 99 A. 2d 730 ; Tyler v. Warden, 206 Md. 635 , 109 A. 2d 919 . Fourth, he alleges that he was not allowed to have witnesses on his behalf.

This also goes to the regularity of the proceedings and could have been raised on appeal, but cannot be raised on habeas corpus. Ridgeley v. Warden, 201 Md. 651 , 92 A. 2d 451 ; Selby v. Warden, 201 Md. 653 , 92 A. 2d 756 ; Randall v. Warden, 208 Md. 667 , 119 A. 2d 712 ; Snead v. Warden, 215 Md. 595 , 135 A. 2d 630 ; Ex parte Harding, 120 U. S. 782 . Fifth, the applicant asserts that he “was not given a new ⁶¹⁹ trial or an appeal,” though he claims to have asked the trial court for it. The filing of a motion for a new trial or an appeal is a matter of right and not one of judicial granting.

Brigmon v. Warden, 213 Md. 628 , 131 A. 2d 245 . There is no allegation that the defendant lacked counsel or was unaware of his legal rights or that he filed