Opinion
[No. 22, October Term, 1950.]
Decided December 6, 1950.
Habeas Corpus — Perjured Testimony — Bold Assertion In Petition for Writ of, That It Was Deliberately Used, Insufficient In Absence of Facts Showing State's Officers Knew It was Perjured or Participated In Conspiracy To Deprive Petitioner of His Rights — Weight or Sufficiency of Evidence, Not Reviewable on — Inconsistencies In Testimony of Prosecuting Witness In Rape Case and Weakness or Uncertainty of Her Identification of Accused Go To Weight or Sufficiency of Evidence — Error in Court's Charge To Jury, Not Reviewable on.
A bald assertion in a petition for a writ of habeas corpus that perjured testimony was deliberately used against the petitioner is insufficient in the absence of fats showing that the State's officers used testimony known to be perjured or participated in any conspiracy to defraud petitioner of his rights. p. 685
The weight or sufficiency of the evidence is not reviewable on habeas corpus. p. 686
Alleged inconsistencies in the testimony of the prosecuting witness in a rape case and alleged weakness or uncertainty of her identification of the accused go to the weight or sufficiency of the evidence. pp. 685-686
Error in the Court's charge to the jury is not reviewable on habeas corpus. p. 686
In the absence of particulars showing that the trial was a sham, the dismissal of a petition for a writ of habeas corpus without hearing testimony is within the court's discretion. p. 686
Decided December 6, 1950.
Habeas corpus proceeding by Charles W. Reeder against Warden of Maryland Penitentiary. From a refusal of the writ, petitioner applied for leave to appeal.
Application denied.
Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.
This is an application for leave to appeal from a refusal of a writ of habeas corpus. The applicant was convicted of rape in Harford County in 1947, after a jury trial, and sentenced to life imprisonment. He was represented by counsel, and after a motion for new trial was overruled, no appeal was taken to this court. In his petition for a writ of habeas corpus he alleged that the trial court did not have jurisdiction "because perjured testimony was deliberately used to obtain a conviction" and "because it clearly appears from the transcript of record of the case that the Relator * * * was wrongly identified as the perpetrator of the crime * * *". Judge Niles granted the petition, but at the hearing, ruled that the petition was insufficient and signed an order remanding the relator "with leave to file an amended petition". This leave was "withdrawn by request of relator's counsel, after motion for immediate amendment denied", to which motion the state objected.
We think the court's ruling was correct. A bald assertion that perjured testimony was deliberately used against him in insufficient, in the absence of "facts showing that the State's offers used testimony known to be perjured, or participated in any conspiracy to defraud petitioner of his rights." Sembly v. Warden, 190 Md. 744, 745, 60 A.2d 526. To the same effect, see State ex rel. Sisk v. Warden, 190 Md. 759, 59 A.2d 790; State ex rel. Celetano v. Wright, 192 Md. 713, 63 A.2d 635; and State ex rel. Heddings v. Superintendent, 193 Md. 723, 68 A.2d 675. In Rountree v. Wright, 189 Md. 292, 283, 55 A.2d 847, Judge Markell, speaking for the court, said: "Even if these assertions in the brief had been allegations in the petition for habeas corpus, they would not have been sufficient to entitle petitioner to a writ. There are no allegations or assertions or supporting affidavits as to facts showing that evidence was perjured and known by the State's officers to be perjure (Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406; Pyle v. State of Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214; Lisenba v. People of State of California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166), or was suppressed by threats of State's officers, or that petitioner's counsel betrayed him or acted corruptly or collusively ( Woods v. Nierstheimer, 328 U.S. 211, 66 S.Ct. 996, 90 L.Ed. 1177) * * *."
Moreover, is apparent from the memorandum brief filed by the present counsel for the petitioner in connection with his replication to the State's general denial, that he has no new evidence of perjury or misconduct, but relies entirely upon the transcript of record at the trial to show alleged inconsistencies in the testimony of the prosecuting witness in regard to the commission of the crime, and the alleged weakness or uncertainty of her identification of the accused. He argues from the record that the State's officers "knew or should have known that the relator was innocent". These arguments were open to the accused at the trial, and on motion for new trial. They go to the weight or sufficiency of the evidence, not to the question of due process. Likewise, the contention that there was error in the charge to the jury is not open in this proceeding. In the absence of particulars tending to show that the trial was a sham, the dismissal of the petition without hearing testimony was within the court's discretion. Code, 1947 Amendment, Article 42, § 3B; Nance v. Warden, 189 Md. 112, 53 A.2d 554.
Application denied, with costs.