
    SUTTON v. WARDEN OF MARYLAND HOUSE OF CORRECTION
    [P. C. No. 4,
    
    September Term, 1958.]
    
      Decided March 18, 1959.
    
    Before Bruñe, C. J., and Henderson, Hammond, Prescott and Horney, JJ.
   Per Curiam.

This is an application for leave to appeal under the Post Conviction Procedure Act, Code (1958 Supp.), Article 27, Sections 645A-645J. The applicant was convicted in the Circuit Court for Howard County for the crimes of assault with attempt to rape and common assault, and was sentenced to terms of confinement of six years and one year, respectively, to be served concurrently. In his petition to the lower court, he stated that he was a pauper and requested the court to appoint counsel for him. The trial court made no finding upon the question of the petitioner’s indigency as required by Section 645E, and failed to appoint counsel for him as requested.

He contends (1) that he was erroneously convicted upon perjured testimony, (2) that the State’s witnesses gave conflicting testimony and (3) that the crimes of which he was convicted were not proven beyond a reasonable doubt.

Following our rulings in Byrd v. Warden, 219 Md. 681, and Hobbs v. Warden, 219 Md. 684, the case must be remanded because of the failure of the trial court to appoint counsel to represent the applicant. Of course, Section 64SE does not require the appointment of counsel if the court determines that the petitioner is not without sufficient funds to employ his own counsel; but, in the absence of a determination of this question by the court, we assume, for the purposes of this application, that the petitioner was indigent.

Application for leave to appeal granted and case remanded for further proceedings not inconsistent with this opinion, the costs to be paid by the County Commissioners of Howard County.  