HENDERSON, J., delivered the opinion of the Court.
On June 1, 1956, the appellee, along with two co-defendants, was tried and convicted of robbery with a dangerous and deadly weapon by Judge Smith sitting without a jury in the Circuit Court for Baltimore County, and sentenced to twelve years imprisonment. The co-defendants received sentences of eight and twelve years, respectively. All of them were represented by competent counsel. On November 24, 1958, the appellee filed a petition under the Post Conviction Procedure Act, which was answered by the State's Attorney on December 5, 1958. After a hearing on December 16, 1958, before Judge Gontrum, the judgment, verdict and sentence were ordered stricken and the petitioner released from custody. The State filed an application for leave to appeal, which was granted by this Court, and the case advanced for argument.
The appellee's first contention is that the application for leave to appeal was not in time, and the matter is not properly before us. It appears that on January 13, 1959, the
The appellee also contends that the transcript of testimony of the trial of the appellee in 1956 is not properly before us. It is true that this transcript was not offered in evidence at the post conviction hearing, but that hearing was conducted in a most unusual manner. Judge Smith had retired from the bench at the time of the hearing, but he nevertheless, by invitation of Judge Gontrum, and without objection by either side, sat with Judge Gontrum at the hearing and conferred with
Judge Gontrum also stated that he was impressed, and "Judge Smith must be also", with the opinion of Father Tobey, the Prison Chaplain, expressed in court, that "Burroughs is now telling the truth and that D'Onofrio is also telling the truth, his words have great weight with the court." Four days later, in a supplementary statement, Judge Gontrum stated that "D'Onofrio is not so much the injured innocent * * *. He is the only one of the trio * * * who had a criminal record. * * * His actions at the time of the holdup were such as to justify a conclusion that he was guilty beyond a reasonable doubt and to a moral certainty. * * * It is only because the court feels that there is now a reasonable doubt raised by the subsequent testimony of Burroughs, the statement of Burke and the convincing testimony of Father Tobey that the court has arrived at the opinion that D'Onofrio's
Subsequent to the filing of the application for appeal, the State, over objection by the appellee, sought to include the original transcript in the record. The appellee filed a motion to strike which came on for hearing. On May 20, 1959, Judge Gontrum filed a lengthy memorandum, reviewing the whole case, in which he noted that the State had offered no testimony at the post conviction hearing, and "the court was left under the definite impression that the State had no objections to the granting of the relief prayed. * * * With the advantage of having former Judge Smith confer with me in the hearing on the petition, I felt that I was, to quite an extent, in the position of the court sitting as a jury which had heard the original case. I was not informed by the State's Attorney that the testimony of Burroughs and Burke was not a part of the State's case, nor did I ask Judge Smith concerning it * * *." The court continued: "* * * it would seem that the transcript of the testimony in the original case is not a part of the record in this appeal. However, in order that the Court of Appeals may have the whole record before it, I have ordered that a transcript of the original hearing be filed in the record * * *. In conclusion, after having familiarized myself with the record of the original suit when the matter was brought up some weeks subsequent to the hearing, I am still of the opinion that D'Onofrio's strange tale is true, and that to confine him longer in prison would be a miscarriage of justice. For that reason I have released him on bail, pending an appeal * * *."
It is well settled, of course, that a record cannot be amplified by the introduction of new matter or proceedings taken in the trial court subsequent to a hearing, with possible exceptions in connection with divorce proceedings or where there is a claim that the case has become moot. Under the very unusual circumstances of the instant case, however, we are disposed to consider the transcript of the original proceedings for several reasons. In the first place, it seems clear that the court's action, appealed from, was predicated upon a misconception of what actually occurred in the original trial,
We think these irregularities, without more, might support a remand of the case for further consideration by the trial court. We do not accept the appellee's suggestion that, in the absence of the transcript of the original trial, there is nothing before us to review. The appellant has produced enough, in the opinions of the trial court and other papers in the case, aside from the transcript in question, to show probable error, and we find nothing to indicate such a waiver by the State as to foreclose its right to review. However, it is clear that the trial court did, in the end, read and consider the transcript which was included in the record, and reaffirmed its earlier action. In effect, the trial court granted a rehearing and came up with the same result. We think a remand would serve no useful purpose. The case has been fully presented, and we are disposed to consider the transcript as properly before us, under the peculiar circumstances of this case.
The problem presented is that of the recanting witness. Burroughs, Burke and D'Onofrio were jointly indicted and
At the post conviction hearing D'Onofrio told virtually the same story he had told at his trial. Burroughs testified that at the first trial he had given a statement which "implicated" D'Onofrio in the holdup, he didn't remember the words he used but believed he said D'Onofrio mentioned having a weapon and mentioned a holdup that night. His reason for implicating D'Onofrio was because he was angry with him. The remarkable thing about the testimony which Burroughs recanted was that it was not offered by the State, was apparently not necessary to the conviction, and was certainly
The State rests its case, however, on the proposition that, even assuming that the testimony recanted was material to the issue, it does not afford ground for relief under the Act. Code (1959 Supp.), Art. 27, sec. 645A (a) provides that any person convicted of a crime and incarcerated under sentence of imprisonment "who claims that the sentence or judgment was imposed in violation of the Constitution of the United States or the Constitution or laws of this State, or that the court * * * was without jurisdiction to impose the sentence, or that the sentence exceeds the maximum authorized by law, or that the sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under a writ of habeas corpus, writ of coram nobis, or other common law or statutory remedy, may institute a proceeding under this subtitle to set aside or correct the sentence, provided the alleged error has not been previously and finally litigated or waived in the proceedings resulting in the conviction, or in any other proceeding that the petitioner has taken to secure relief from his conviction." Sec. 645A (b) provides that "The remedy herein provided is not a substitute for, nor does it affect any remedies which are incident to the
These provisions are virtually identical with those of the Uniform Acts, Post-Conviction Procedure Act, 9B U.L.A., sec. 1. In a comment by the Commissioners who prepared the Uniform Acts, it was noted: "The aim of this section is to bring together and consolidate into one simple statute all the remedies, beyond those that are incident to the usual procedures of trial and review, which are at present available for challenging the validity of a sentence of imprisonment. * * * [It] is aimed to incorporate and protect all rights presently available under habeas corpus, coram nobis, or other remedies. The change is a procedural one." We think it is perfectly clear that the Act does not create any new substantive rights or remedies, that were not available prior to its enactment.
The problem of a recanting witness is not a new one in Maryland. We have repeatedly held that a contention that a conviction was based on perjured testimony may not be raised on habeas corpus, in the absence of allegations that a State officer had a part in procuring the testimony or, at the time of trial, knew it to be perjured. Myers v. Warden, 218 Md. 633; Jones v. Warden, 214 Md. 656; Height v. Director, 209 Md. 647, 650; Whitley v. Warden, 209 Md. 629, cert. den. 351 U.S. 929; Rountree v. Wright, 189 Md. 292. The Supreme Court has held that a right to procedural due process is violated, if it be shown that State officials knowingly colluded in the production of perjured testimony, or allows it to go uncorrected when it appears. See Napue v. Illinois, 360 U.S. 264; Alcorta v. Texas, 355 U.S. 28; White v. Ragen, 324 U.S. 760; Hysler v. Florida, 315 U.S. 411; Mooney v. Holohan, 294 U.S. 103. The cases seem to recognize, at least where State procedure is under review, that no Constitutional question is presented in the absence of a showing of State knowledge or participation. (Cf. Matter of Morhous v. N.Y. Supreme Court, 293 N.Y. 131, and People v. Wakat, 114 N.E.2d 706, 710 (Ill.).) Unlike the situation in some other States, Maryland has long recognized that the writ of habeas corpus is broad enough to permit
Nor is relief available under the writ of coram nobis. Keane v. State, 164 Md. 685, is directly in point. In Madison v. State, 205 Md. 425, relief was denied upon motion to strike the judgment, but this Court also denied relief, treating the motion as an application for coram nobis. See also Johnson v. State, 215 Md. 333. In some States coram nobis has been given a wider scope than in Maryland, to permit a new trial on a showing of conditions tantamount to a denial of due process. Harris v. Commonwealth, 296 S.W.2d 700, 702 (Ky.). See also Frank, Coram Nobis § 3.01 [b]. But even there, the mere recantation of material testimony is not enough to require relief. We know of no other common law or statutory remedy that would afford relief because of recantation by a witness, without proof of State collusion in the alleged perjury. As pointed out in the Keane case, supra, it might well be impossible to determine which version was correct, and the only relief would seem to be through the parole authorities.
Order reversed, and petition dismissed.