Husk v. Warden, Md. Penitentiary

• Citation: 214 A.2d 139,240 Md. 353
• Decision Date: 15 November 1965
• Docket Number: No. 43,43
• Parties: Harold Dale HUSK v. WARDEN, MARYLAND PENITENTIARY. Post Conviction
• Court: Court of Appeals of Maryland

Page 353

240 Md. 353

214 A.2d 139

Harold Dale HUSK v. WARDEN, MARYLAND PENITENTIARY.

Post Conviction No. 43.

Court of Appeals of Maryland.

Nov. 15, 1965.

Before PRESCOTT, C. J., and HAMMOND, HORNEY, OPPENHEIMER and McWILLIAMS, JJ.

HAMMOND, Judge.

On September 25, 1962, petitioner was tried and convicted of larceny and conspiracy by Judge Carter sitting without a jury in the Criminal Court of Baltimore, and was sentenced to eight years on the first count and eight years on the second count, the sentences to run concurrently. These judgments and sentences were affirmed by this Court in Husk v. State, 233 Md. 192, 195 A.2d 686.

On January 25, 1965, petitioner sought relief under the Post Conviction Procedure Act. A hearing was held before Judge Harris in opin court on March 30, 1965, with petitioner represented by court-appointed counsel. His application was denied.

In the lower court petitioner made three points. The first contention is that there was insufficient evidence to convict, because he says, he was convicted on the uncorroborated testimony of an accomplice. The insufficiency of the evidence is not of itself ground for post conviction relief, Young v. Warden of Maryland Penitentiary, 233 Md. 596, 195 A.2d 713, and, in any event, this matter was fully considered and finally determined by this Court in petitioner's direct appeal, Husk v. State, supra, and it has repeatedly been held that questions previously and finally litigated may not be raised in post conviction proceedings. Jackson v. Warden of Maryland Penitentiary, 236 Md. 634, 204 A.2d 566; Bryant v. Warden, 235 Md. 658, 202 A.2d 721; Code (1965 Supp.), Art. 27, § 645A(a) and (b).

In his application to this Court for leave to appeal, the petitioner directs our attention to Hunt v. Warden, Maryland Penitentiary, 4 Cir., 335 F.2d 936 (1964), for the proposition that the question of sufficiency of the evidence can be raised on post conviction proceedings. Hunt clearly did not so hold. The case deals with the question of exhaustion of State remedies as a prerequisite to post conviction relief in the federal courts and did not attempt to list those matters which are reviewable by the Maryland Court of Appeals in its post conviction procedure following a final determination on direct appeal.

The petitioner next contended that the accomplice should not have been allowed to testify or to implicate petitioner because she was at that time under indictment for perjury. Petitioner is mistaken as to the facts. Miss LeBrun, the accomplice, was indicted for conspiracy, larceny, and for making a false report of the theft involved. The indictment for the false report arose from the fact that the accomplice originally told the police a story which completely absolved her from guilt, and then recanted. The petitioner erroneously correlates an indictment for a false report with 'false statement' and concludes that this means perjury. The fact that she was indicted for false report or even that she was guilty of that crime does not disqualify her as a witness.

Lastly, the petitioner made the contention to the lower court '* * * that the court knowingly and intentionally used perjury testimony which was not stricken from the record.' While petitioner uses the word 'court,' it seems clear from the record, as Judge Harris seemed to assume, that the allegation actually meant that the prosecution knowingly used perjured testimony. The petitioner filed a letter following his hearing wherein he stated that the 'State' deliberately and intentionally used perjured testimony. At the hearing,...