HABEAS CORPUS — Indictment Defective or Unsupported By Evidence, Lack of Fair and Impartial Trial. Defectiveness of an indictment, its lack of support by evidence, and denial of a fair and impartial trial cannot be raised on habeas corpus. pp. 641-642
Decided November 11, 1952.
MARKELL, C.J., delivered the opinion of the Court.
This is an application for leave to appeal from denial of a writ of habeas corpus. Petitioner is confined under sentence for three years on conviction of burglary. He apparently complains that the indictment (which is not in the record, nor is the commitment nor the docket entries in the criminal case) charged him (in a count other than the one under which he was convicted) with the larceny of ten keys of the value of $2.50 each, whereas the keys were actually of the value of 25 cents each, thus charging as a felony what was actually only a misdemeanor. At the trial he was represented by counsel, apparently of his own selection. He alleges (without further factual basis) that he was not given a fair and impartial trial.
If the indictment was defective, or unsupported by evidence or petitioner in any respect was denied a fair and impartial trial, objections at the trial on any such grounds could have been reviewed on motion for a new trial or on appeal. As Judge France said in denying a writ of habeas corpus, the writ cannot be made to serve the purpose of an appeal, or a new trial of the question of guilt or innocence.
Application denied, with costs.