Johnson v. State

• Decision Date: 21 January 1958
• Docket Number: No. 120,120
• Citation: 138 A.2d 372,215 Md. 333
• Parties: Joseph Milton JOHNSON v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 333

215 Md. 333

138 A.2d 372

Joseph Milton JOHNSON v. STATE of Maryland.

No. 120.

Court of Appeals of Maryland.

Jan. 21, 1958.

Leonard A. Orman, Baltimore, for appellant.

James H. Norris, Jr., Spec. Asst. Atty (C. Ferdinand Sybert, Atty. Gen. and J. Harold Grady, State's Atty., Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

PRESCOTT, Judge.

This is an appeal from an order of the Criminal Court of Baltimore, which denied the appellant's motion to strike out or modify his sentence after his conviction of the crime of assault with intent to rape.

The appellant was convicted of said offense on May 9, 1956, and sentenced to a term of five years in the Maryland House of Correction. The victim of the assault was one Shirley Moore, who was the prosecuting witness. The appellant began to serve his term of imprisonment, and on March 1, 1957, long after the expiration of the term of court at which he was sentenced and the time limited in Maryland Rule 744, subd. c filed a motion, which he termed a motion to strike out or modify his sentence. The motion, prepared without the aid of counsel, is quite lengthy, being replete with extraneous and immaterial matter. The hard core of the same is simply that the appellant, on November 29, 1956, received the following letter:

'To Whom It May Concern

'Shirley Moore told me that Mr. Joseph M. Johnson (the appellant) did not rape her, she just said that: She said a girl named Merdy started all that mess.

'(S) Lorraine Branch

'(S) Julia Branch

('Lorraine Mother')' He contended, in the motion, that the receipt of this letter constituted such newly discovered evidence, which showed that fraudulent and perjured testimony secured his conviction, as to require that his sentence be modified or stricken out.

It may be well, at this point, to analyse the nature of the motion, and consider what he duties of the judge were upon its being filed. While it purports to be a motion to strike out or modify the sentence, it contains no allegation of facts that would form a basis to give the trial court jurisdiction to strike out or modify the same, after the time named in Rule 744, subd. c and the expiration of the term at which the judgment was rendered. This Court, in Madison v. State, 205 Md. 425, 431, 109 A.2d 96, stated the general rule is that a common-law court has no right to strike out or modify a judgment, upon motion made after the expiration of the term; but recognized as an exception to this rule, that it could do so for fraud, surprise, or mistake. (The Court also recognized that the trial court has the power to correct clerical errors in a judgment or inaccuracies in its form for the purpose of making it conform to the truth.) Of course, Maryland Rule 744 is another exception to the general rule, but it has no bearing on the present situation. It was further held in the Madison case that either the writ of error coram nobis or proper motion are available, in both civil and criminal cases without limitation as to time, to bring before the court facts which were not brought into issue at the trial of the case, and which were material to the validity and regularity of the proceedings, and which, if known by the court, would have prevented the judgment. The opinion, however, specifically stated that the writ of error coram nobis or motion in the nature of such a writ would not lie (1) to correct an issue of fact which had been adjudicated, even though wrongly determined, or (2) to determine whether any witnesses testified falsely at the trial, or (3) to present newly discovered evidence, or (4) to strike out a conviction on the ground that the prosecuting witness was mistaken in his identification of the accused as the person who committed the crime. (This, of course does not apply to a motion for a new trial, seasonably made.) It is obvious that the motion in the present case is no more than an application to present allegedly newly discovered evidence in an attempt to prove that a witness testified falsely at the trial; so, it cannot be a motion in the nature of a writ of coram nobis. It is, in reality, a motion for a new trial, filed long after the time allowed for filing such a motion; because litigants cannot change what is a motion for a new trial into a motion to strike out a sentence and judgment simply by styling it as such. Price v. Warden, 212 Md. 661, 663, 129 A.2d 120. As the motion being considered was no more than a motion for a new trial, tardily filed, the only duty that devolved upon the trial court was to dismiss the same, when requested to rule thereon.

However, as a result of the motion, Judge Carter caused an investigation to be made by a police investigator, who rendered his report to the judge. After receiving the report Judge Carter passed an order denying the motion, and it is from this order that the appellant has appealed.

The appellant, in this Court, admits that the trial judge was under no obligation to order an investigation, and possibly his motion did not contain the allegation of sufficient facts so as to give the trial judge jurisdiction, after the time mentioned in Rule 744, subd. c and the expiration of the term at which he was sentenced, to...