Tillett v. Warden ( 1957 )

215 Md. 596 (1957) 135 A.2d 629

TILLETT
v.
WARDEN OF MARYLAND HOUSE OF CORRECTION

[H.C. No. 40, September Term, 1957.]

Court of Appeals of Maryland.

Decided December 24, 1957.

Before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

BRUNE, C.J., delivered the opinion of the Court.

The applicant filed a petition for a writ of habeas corpus based upon the contention that the sentence under which he is confined was illegal. His petition was denied by Judge S. Ralph Warnken, sitting in the Baltimore City Court, and the applicant seeks leave to appeal.

The applicant pleaded guilty to a charge of an attempt to break and enter into a storehouse (in this instance a supermarket). The offense which was attempted constitutes statutory burglary (Code (1951), Art. 27, Sec. 38), and an attempt to commit such an offense constitutes a common-law misdemeanor. Hochheimer, Criminal Law (2d Ed.), Sec. 266; Wharton, Criminal Law (12th Ed.), Sec. 212. The maximum penalty for violation of Sec. 38 of Art. 27, supra, is ten years' imprisonment. A sentence for a common-law crime for which no penalty is fixed is not invalid unless it amounts to cruel or unusual punishment, (Roberts v. Warden, 206 Md. 246, 111 A.2d 597); and, in the case of an attempt, is not necessarily controlled by the statutory penalty for the completed offense. Williams, Criminal Law (1953), Secs. 135, 152; Casey v. Warden, 198 Md. 645, 80 A.2d 896.

Application denied, with costs.