State ex rel. Justice v. Warden of Maryland Penitentiary

97 A.2d 906, 203 Md. 651, 1953 Md. LEXIS 280

• Court: Court of Appeals of Maryland
• Decided: July 2, 1953
• Docket: H. C. No. 7
• Status: Published

Opinion

Sobeloff, C. J.,

delivered the opinion of the Court.

This is an application for leave to appeal from a denial of a writ of habeas corpus by Judge Manley of the Supreme Bench of Baltimore City.

Woodrow Justice, the petitioner, was indicted for assault with intent to kill, and assault. He was found not guilty under the first count, guilty under the second, and he was sentenced to serve five years in the Maryland Penitentiary.

At the time of the commission of the offense, petitioner had been on parole after having served part of an eighteen-year sentence for a prior conviction of second degree murder. When sentencing him for the assault conviction, Judge Murray in the Circuit Court for Baltimore County, did not specify whether the sentence of five years was to run consecutively or concurrently with the unserved portion of the sentence of eighteen years.

Consequently, petitioner contends that it is to be presumed that the sentences are to run concurrently. But Sec. 101 of Art. 41 of the Annotated Code of Maryland (1951), provides that whenever a paroled prisoner is convicted of any crime committed While on parole, the original term shall run consecutively to the new sentence, unless expressly ordered to the contrary by the judge imposing the new sentence. The trial court not having specified otherwise, it follows that the petitioner’s sentences are to run consecutively.

Petitioner alleges, also, that his commitment papers indicate that he was found guilty of assault with intent to kill. Such a clerical error does not require release on habeas corpus. The corrected commitment has been forwarded to the Maryland Penitentiary.

Application denied, with costs.