Dorsey v. Warden of Maryland Penitentiary , 196 Md. 666 ( 1950 )

Marbury, C. J.,

delivered the opinion of the Court.

This is an application for leave to appeal from a decision of Judge Mason of the Supreme Bench of Baltimore City, denying the issuance of a writ of habeas corpus.

The applicant makes four contentions: first, that the police oificer who arrested him testified incorrectly at his trial that he had a warrant for the applicant at the time he arrested him; second, that the same oificer testified that the warrant had been sworn out before a magistrate a week before applicant’s apprehension, but that it was 126 hours before applicant was given a hearing before the magistrate; third, that the testimony of a witness was requested but the prosecuting attorney’s procedure prevented him from getting his witness; and fourth, that the principal state’s witness at the magistrate’s hearing did not appear at the trial.

Habeas corpus cannot be used to attack incorrect testimony or the failure of a state’s witness to appear. The applicant does not state that he asked the court to summon his missing witness, and it does not appear from the record what the procedure of the state’s attorney was which prevented him from getting his witness. Under these circumstances we are unable to find that there was any denial of due process.

Application denied without costs.