McGloin v. Warden

Henderson, J., delivered the opinion of the Court. This is an application for leave to appeal from the denial of a writ of habeas corpus. Petitioner was convicted on July 6, 1956, by Judge Tucker, in the Criminal Court of Baltimore, of attempted burglary and larceny, and sentenced to a four-year term on the first charge and eighteen months on the second, to run concurrently. He sought a writ of habeas corpus from Judge Michaelson, in the Circuit Court for Anne Arundel County, on September 23, 1957, contending that the sentence for attempted burglary was illegal, in that it charged a “nonexistent” crime.

Judge Michaelson held that the sentence was legal, since an attempt was indictable at common law, citing 1 Wharton, Criminal Law (12th Ed.), § 212. Cf. Whitley v. Warden, 209 Md. 629 (cert. denied and appeal dism., 351 U. S. 929 ). Whether the question is open on habeas corpus may be doubted, since in essence the attack is upon the validity of the indictment and not upon the juris ⁶³¹ diction of the court.

Cf. Superintendent v. Calman, 203 Md. 414, 420 , et seq. While urging that the decision was correct, the Attorney General contends that the case is moot because the petitioner was released on parole on November 18, 1957. In Jett v. Superintendent, 209 Md. 633, 636 , we pointed out that it is generally held that a parolee is not entitled to the writ,