Whiting v. Director of Patuxent Institution

243 Md. 727 (1966) 223 A.2d 161

WHITING
v.
DIRECTOR OF PATUXENT INSTITUTION

[App. No. 20, September Term, 1965.]

Court of Appeals of Maryland.

Decided October 11, 1966.

Before HAMMOND, C.J., and HORNEY, MARBURY, OPPENHEIMER, BARNES and McWILLIAMS, JJ.

PER CURIAM:

Applicant had previously been convicted in the Criminal Court of Baltimore of robbery on November 1, 1963, and had been sentenced to not more than 18 months in the Maryland Institution for Men. Subsequently, on January 18, 1965, he was found to be a defective delinquent by Judge Cardin, sitting without a jury, and committed to the Patuxent Institution pursuant to Code (1957, 1965 Cum. Supp.), Article 31B, Section 5. Application for leave to appeal and a memorandum in support thereof have been filed on his behalf by his court appointed attorney. He sets forth the following contentions:

1. That the verdict was erroneous and against the weight of the evidence.

2. That there was no evidence legally sufficient to support a finding of defective delinquency.

3. That the evidence showed that applicant's criminal record was not too bad.

4. That the evidence showed that the applicant was ready to return to society.

All four of applicant's contentions go to the weight of the evidence and not to the sufficiency thereof. We have consistently held that questions as to the weight of the evidence are not available on application for leave to appeal if, in a non-jury case, the finding is not clearly erroneous. Alt v. Director, 240 Md. 262, 213 A.2d 746; Blakney v. Director, 239 Md. 704, 211 A.2d 734; Colbert v. Director, 234 Md. 639, 199 A.2d 801. Since the report of the Patuxent Institution resulted in a finding that the applicant was a defective delinquent the applicant's second and third points go to the weight of the evidence and not to the sufficiency thereof. Chavez v. Director, 243 Md. 725, 223 A.2d 160, Mumford v. Director, 243 Md. 723, 223 A.2d 158.

With regard to applicant's fourth contention, we have held that evidence of rehabilitation goes to the weight of the evidence. Silvestri v. Director, 234 Md. 641, 199 A.2d 784.

Application denied.