
    BYRD v. WARDEN OF MARYLAND PENITENTIARY
    [H. C. No. 4,
    October Term, 1956 (Adv.).]
    
      Decided July 12, 1956.
    
    
      Before Bruñe, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ.
   Hammond, J.,

delivered the opinion of the Court.

This is an application for leave to appeal from the denial of a writ of habeas corpus by Judge Smith of the Circuit Court for Baltimore County. Judge Woodward, sitting without a jury, in the Circuit Court for Montgomery County, had found the petitioner guilty of assault with intent to rape and sentenced him to life imprisonment.

Petitioner contends that his trial was illegal because he was tried for an offense punishable by capital punishment by a judge instead of a jury and that his counsel showed a lack of diligence or a lack of competency in permitting this to happen.

There is no merit in the complaints. As was noted in Grammar v. State, 203 Md. 200, 214, trial by the court in criminal cases, including capital cases, is a normal and customary procedure in Maryland and is, of course, entirely legal. The record shows that the petitioner’s counsel, in his presence, elected a trial by the court without a jury and, this being so, the election was that of the accused himself. Raynes v. Warden, 193 Md. 700. Again, as was said in the Grammer case: “There was no need, indeed no reason, why the Court below sua sponte should have delayed the trial or taken any action, other than to accept, as it did, the normal election of the appellant to be tried by the Court * *

The petitioner’s complaint against his counsel is that he was not diligent or competent because he permitted petitioner to elect a trial by the court instead of trial by a jury. The mere statement of the claim is enough to demonstrate its lack of merit. There is no allegation of fraud or bad faith or of collusion with any official of the State and no evidence that petitioner ever made any complaint to the Judge either before or during the trial, either concerning his counsel or the fact that the trial was by the court alone. It has been held that denial of a jury trial cannot be raised on habeas corpus. Ahern v. Warden, 203 Md. 672.

Application denied, with costs.  