Chavez v. Director of Patuxent Institution

243 Md. 725 (1966) 223 A.2d 160

CHAVEZ
v.
DIRECTOR OF PATUXENT INSTITUTION

[App. No. 19, 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 escape, attempted larceny, and larceny on April 17, 1962, and had been sentenced to the Maryland State Reformatory for Males for a term of not more than 18 months. Subsequently, on January 18, 1965, the applicant was found to be a defective delinquent by Judge Cardin, sitting without a jury, and committed to Patuxent Institution pursuant to Code (1957, 1965 Cum. Supp.), Article 31B, Section 5. An application for leave to appeal and a memorandum in support thereof have been filed on behalf of the applicant by his court appointed attorney in which he sets forth the following contentions:

1. That Article 31B is unconstitutional because:

(a) it violates the guarantee of due process,

(b) it violates the guarantee of equal protection of law,

(c) it violates the guarantee against double jeopardy,

(d) it imposes confinement without maximum limitation,

(e) it imposes confinement after applicant's sentence has expired, and

(f) it is an ex post facto law.

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

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

The contentions raised in 1 (a) through (f) have been completely answered by this Court in the case of Director v. Daniels, 243 Md. 16, 221 A.2d 397.

With regard to the applicant's second contention, 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 deefctive delinquent, the applicant's third contention goes to the weight of the evidence, not to the sufficiency thereof, and is not available to him. Mumford v. Director, 243 Md. 723, 223 A.2d 158.

Application denied.