Burley v. State

Prescott, C. J., delivered the opinion of the Court. Appellant was convicted1, on December 6, 1960, by Judge Cullen in the Criminal Court of Baltimore, and sentenced to five years’ confinement. He appealed and this Court affirmed. Burley v. State, 226 Md. 94 .

On, or about, May 7, 1964, he filed a motion “to set aside the verdict and grant him a new trial,” on the ground of “newly discovered evidence.” Judge Cullen, after hearing the newly discovered evidence, denied the motion and the present appeal resulted. Appellant contends that Maryland Rule 764 b grants revisory power over judgments entered in their courts to the trial judges ³⁴⁴ in cases of “fraud, mistake or irregularity,” and it was a gross abuse of discretion by Judge Cullen in denying his motion. The State, on the other hand, argues that the court’s order is not an appealable one, and we agree. If appellant’s motion be treated as one for a new trial and if it had been timely filed, it would have been heard by the Supreme Bench of Baltimore City.

And under the general rule, the court’s action in denying a motion for a new trial is not reviewable by this Court. Colter v. State, 219 Md. 190 ; Thomas v. State, 215 Md. 558 (decided prior to the effective date of the U.P.C.P.A., hereafter referred to as “the Act”) Brady v. State, 222 Md. 442 ; Code (1964 Supp.), Article 27, Section 645 A (b). Cf. Shields v. State, 224 Md. 485 .

We recognized an exception to the general rule where the trial court refused even to consider newly discovered evidence relating to a motion for a new trial. Wash., B. & A. R. Co., v. Kimmey, 141 Md. 243 . Cf. Hanley v. Stulman, 216 Md. 461 .

The instant case comes within the purview of the general rule. (For a case stating the rule relative to civil actions, see B. J. Linthicum’s Sons,