Hornes v. Warden of Maryland House of Correction , 235 Md. 673 ( 1964 )

235 Md. 673 (1964) 202 A.2d 643

HORNES
v.
WARDEN OF MARYLAND HOUSE OF CORRECTION

[App. No. 153, September Term, 1963.]

Court of Appeals of Maryland.

Decided July 29, 1964.

Before the entire Court.

PRESCOTT, J., delivered the opinion of the Court.

In his application for leave to appeal, the applicant raised nine contentions. Judge Carter, in his opinion, dealt fully and properly with all of them except 2, 3 and 5. We, therefore, supplement his opinion as follows:

2. "That his home was illegally searched." No "fruits" of any search were offered at his trial; hence if there were an illegal search of his home, it was an immaterial matter in his criminal prosecution.

3. "That he was denied the right to call counsel or his family and that he was not advised of his rights to have counsel." At his hearing below, applicant made no mention of having requested anyone to call a lawyer or his family, or to permit him to do so. With reference to the allegation that he was not advised of his right to have counsel, the allegation does not state the time to which it refers (he was represented by court-appointed attorneys at his trial and the hearing herein below). At the hearing below, applicant's counsel asked no questions concerning this allegation, and no other evidence was produced concerning it. He pleaded guilty at his trial and freely testified at his hearing herein that he was guilty of the offense charged. Under these circumstances, we hold that the applicant failed to sustain the allegation. Compare Escobedo v. State of Illinois, 378 U.S. 478.

5. "That he was not informed that the statement which he signed could be used against him." If we assume, without deciding, that this allegation, if true, might entitle applicant to relief, no evidence was adduced at the hearing below concerning it. We cannot assume a bald, unsupported allegation in the petition to be true; hence there is nothing before us (with reference to this allegation) for determination.

For these reasons and those contained in Judge Carter's opinion with reference to applicant's other contentions, the application will be denied.

Application denied.