Proctor v. Warden of Maryland Penitentiary

177 A.2d 404, 227 Md. 660, 1962 Md. LEXIS 677

• Court: Court of Appeals of Maryland
• Decided: January 23, 1962
• Docket: App. No. 31
• Status: Published

Opinion

Per Curiam.

The applicant here was indicted, along with two others, of assault with intent to rob with a deadly weapon, assault with intent to rob, and simple assault. He was convicted on the second count, sentenced to ten years, and appealed to this Court. Proctor v. State, 223 Md. 394. The only questions raised were concerning an extra-judicial identification made by the victim. The judgment was affirmed. He now seeks to raise for the first time a contention that because the State accepted from Carle, one of his codefendants, a plea of guilty of simple assault, for which he received a sentence of five years, and because Carle testified for the State, the constitutional rights of the applicant were violated. He contends that it was discriminatory, in a constitutional sense, to give Carle an opportunity which was not extended to him.

We think it is too late to raise the point in this proceeding. Failure to make the point at the trial or on appeal constitutes a waiver. Jordan v. State, 221 Md. 134; Lipscomb v. Warden, 225 Md. 634. In so holding, we do not suggest that leniency to a codefendant, or a disparity in sentences, would afford grounds for relief in any event. Barker v. Warden, 208 Md. 662, 665. See also Cothorn v. Warden, 221 Md. 581, 582, and Ellinger v. Warden, 224 Md. 648, 653.

Application denied.