Ellinger v. Warden of Md. Penitentiary
| Decision Date | 21 January 1960 |
| Docket Number | No. 68,68 |
| Citation | 221 Md. 628,157 A.2d 616 |
| Parties | Raymond ELLINGER v. WARDEN OF MARYLAND PENITENTIARY. Post Conviction Application |
| Court | Maryland Court of Appeals |
Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
In this application for leave to appeal, the applicant has alleged only two reasons why the application should be granted. He claims that the lower court failed to rule on his first, fifth and sixth grounds for post conviction relief and that he should have been supplied with the transcript of the post conviction hearing he had demanded. He makes no claim on this appeal that there was any error in the rulings on the other six contentions he raised below.
The applicant, who was convicted by a jury on March 9, 1953, of armed robbery, was sentenced to twenty years in the Penitentiary. No appeal was taken from the judgment and sentence. A co-defendant, who plead guilty and testified on behalf of the State against the applicant, received a sentence of fifteen years.
It is a fact that the lower court did not specifically decide the applicant's first, fifth and sixth questions, which is required by Code (1959 Cum.Supp.), Art. 27, § 645G. See Brigmon v. Warden, Md.1960, 157 A.2d 460. By the first and fifth contentions which may be considered together, the applicant asserts in effect that the substantive evidence--which he claims was false, perjured and fraudulent, was contrived and presented against him by the State of Maryland through the active and fraudulent conduct of the then State's Attorney and the prosecuting witnesses. He elaborated on this contention by stating that the codefendant testified against him 'because of the promises made to him by officers of the State that he would receive a lesser sentence.' While these allegations without more might not be enough to prove that the State knowingly used perjured testimony at the trial, they are clearly more than a mere assertion that such testimony was so used, and we think they are sufficient to state a charge that the State had knowledge of or participated in the use of perjured testimony in violation of the applicant's constitutional rights which must be heard and decided. Cf. State v. D'Onofrio, Md.1959, 155 A.2d 643. We shall therefore remand the application for further proceedings to the end that the lower court may further inquire into the charge and decide the question.
The applicant's sixth contention that the State failed to protect...
To continue reading
Request your trial
-
Davis v. State
...Duff v. Warden, 234 Md. 646, 648, 200 A.2d 78 (1964); Daniels v. Warden, 222 Md. 606, 607, 158 A.2d 763 (1960); Ellinger v. Warden, 221 Md. 628, 630, 157 A.2d 616 (1960). The post conviction judge did not rule on the issue raised by the failure of trial counsel to object to the erroneous in......
-
Wampler v. Warden of Md. Penitentiary
...fall considerably short of full compliance with Maryland Rule BK 45 b. Brigmon v. Warden, 221 Md. 622, 157 A.2d 460; Ellinger v. Warden, 221 Md. 628, 157 A.2d 616; Cook v. Warden, 229 Md. 636, 184 A.2d 620. See also Whitley v. Warden, 222 Md. 608, 612, 158 A.2d 905. Despite the incompletene......
- Baltimore Gas & Elec. Co. v. Bowers
-
Whitley v. Warden, Md. House of Correction, 78
...than we think it should have been under Code (1958 Supp.), Art. 27, Sec. 645G. Cf. Brigmon v. Warden, Md., 157 A.2d 460; Ellinger v. Warden, Md., 157 A.2d 616; in which there were remands for further consideration and determinations of Application denied. ...