BRUNE, C.J., delivered the opinion of the Court.
The applicant, John N. Hyde, was convicted of murder in the first degree in May, 1961, and was sentenced to life imprisonment. His conviction was affirmed in Hyde v. State, 228 Md. 209, 179 A.2d 421, (1962) cert. denied, 372 U.S. 945 (1963). This application for post conviction relief was heard by Judge Berry in the Circuit Court for Baltimore County and was denied by him with the statement that none of the contentions raised came "within the purview of post conviction procedure." The applicant was present at the hearing and took the stand, but in view of the court's ruling no testimony as to the facts alleged in his application or supplemental application was taken.
The grounds alleged as bases for relief were: (1) illegal arrest; (2) use of illegally seized evidence; (3) use of improper means to obtain confession; (4) suppression of certain physical evidence taken from the applicant; (5) failure to give a lie detector test, which he was willing to take; (6) false testimony by a witness for the State; (7) an unfair police line-up; and (8) incompetence of trial counsel.
With his petition the applicant submitted extracts from the record of his trial and we have taken judicial notice of the record extract or appendix to his brief on the original appeal.
Judge Berry's view was that contentions (1) and (2) had
been waived because objections based thereon could have been but were not raised at the trial or on appeal. Since his case was tried about a month before the decision of Mapp v. Ohio, 367 U.S. 643, and the case was heard and decided on appeal to this Court before the decision of the United States Court of Appeals for the Fourth Circuit in Hall v. Warden, 313 F. 2d 483, the consideration thereof on post conviction was not necessarily precluded by waiver. However, on the record in Hyde's appeal we think that the arrest was lawful as made by police officers after having knowledge that a felony had been committed and with reasonable grounds to believe that Hyde had committed it. This, we think, is sufficiently shown by evidence that the police had seen the body of the murdered woman, who had been stabbed to death, had interviewed witnesses who testified at the trial that they had seen the applicant at or leaving the home of the deceased on the morning of the murder close to the time of the discovery of the murder (which was very shortly after its commission), that they had a description of the wanted man, and that they then went to the home of the applicant. In addition, there was testimony which was uncontradicted that he met them at the door, that he was then wearing a bathrobe and slippers, that he told them he was washing clothes, that he invited the officers in and readily agreed to their looking at the clothes which were in the basement where the washing machine was located. He was actually told that he was under arrest when they were in the basement and after Hyde had admitted having "been down the street," though at first he claimed that no one was at home. "Down the street" may have meant only "out of the house", and not the home of the deceased, which was only a few doors away from Hyde's residence. (Before Hyde was taken to the police station he admitted having been in the deceased's house that morning. The testimony of one officer indicates that this statement was made before Hyde's actual arrest, but that of the officer in charge places the time of arrest as we have stated it above.)
The testimony shows that the start of the search at least was consented to, and we think that it was in any event valid, both as to articles found in the basement and others later in the applicant's
room as being incidental to and substantially contemporaneous with a lawful arrest, whether made before or after, or partly before and partly after the actual arrest. See Cannon v. State, 235 Md. 133, 200 A.2d 919. The evidence seized during the search was accordingly admissible.
With regard to contention (4), the alleged suppression of evidence by the State in not offering in evidence certain articles taken from the applicant at the time of his arrest and of the search (of which he complains in contentions (1) and (2)), the record on appeal makes if clear that the applicant knew about these articles, which consisted of clothing which he had been washing just before his arrest. No blood stains were found on them when tested, which was, of courses, after they had been washed. Such evidence does not seem material. In any event, in view of Hyde's knowledge of these articles, this contention is not supprotable. Dyson v. Warden, 233 Md. 630, 196 A.2d 455.
Contention (5) -- failure to give a lie-detector test which the applicant says he was willing to take -- involves no violation of any ...