
    STATE ex rel. WALKER v. WARDEN OF MARYLAND HOUSE OF CORRECTION
    [H. C. No. 25,
    October Term, 1948.]
    Before Marbury, C. J., Delaplaine, Collins, Grason, Henderson and Markell, JJ.
   PER CURIAM.

This is an application for leave to appeal from refusal of a writ of habeas corpus. Petitioner is imprisoned under sentence of three years in the penitentiary (and transferred to the House of Correction) on a charge of assault with intent to rape and a verdict of not guilty on the first count and guilty on the second count of the indictment. Evidently the second count was for common assault. The record contains no copy of the indictment. Petitioner, who was represented by counsel, also, complains of trial without waiting for a witness, Campbell, whom he had had summoned. The application is denied on Judge Tucker’s opinion, which is as follows:

“From the docket entries which are stated in the petition for a writ of habeas corpus it appears that the first count of the indictment against the petitioner John C. Walker, charged him with assault with intent to rape and that the second count charged common assault. These entries show that the petitioner was acquitted on the first count and convicted on the second count. He was therefore committed to prison for three years upon his conviction for common assault. The petition does not show whether a witness, Campbell, was summoned, and neither does it state what his testimony would have been if he had been present. If his testimony was for the purpose of exonerating the petitioner as to the charge of assault with intent to rape his absence was not prejudicial because the petitioner was acquitted of that charge. The petitioner was represented by counsel at the trial, and the petition does not show that the petitioner was denied any fundamental rights.” See Code, 1947 Supplement, Art. 27, sec. 788.

Application denied, without costs.  