Carr v. State

Bruñe, C. J., delivered the opinion of the Court. The appellant, Carr, was tried and convicted on a bastardy charge in the Criminal Court of Baltimore in 1955 and was ordered to pay seven dollars a week for the support of the child. Several witnesses testified in support of the State’s case, including the midwife to whom Carr took the prosecuting witness. The late Judge Moser, before whom the case was tried (without a jury), in reaching his verdict placed great reliance upon the midwife’s testimony.

In 1956 the appellant obtained an affidavit executed or alleged to have been executed by the prosecuting witness stating that he was not the father of her child. He then stopped making the weekly payments which had been ordered. The prosecuting witness repudiated the affidavit, and Carr was then indicted for obstructing justice. He was tried on that charge and was acquitted.

In 1958 he filed a motion to strike out the verdict, ³²⁰ judgment and sentence entered against him in 1955. The State excepted to this motion, its exceptions were sustained, and Carr’s motion was dismissed. He appeals from the order of dismissal. The appellant contends that “the full facts were not before the original trial judge and that therefore he was not granted a full and impartial hearing at the original trial for bastardy.” The term at which the sentence was imposed had expired long before the present motion was filed.

(This is a motion to strike, not a motion under Rule 744 b of the Maryland Rules under which the sentence in bastardy or certain other types of cases may be reduced, changed, modified or suspended.) Judge Cullen held that under Madison v. State, 205 Md. 425, 434 , 109 A. 2d 96 , he had no power after the term at which Carr had been convicted to determine whether any witness testified falsely at the trial, or to correct any issue of fact, which had been adjudicated, even though wrongly determined. He also was of the opinion that, on the basis of the motion and the exhibit accompanying it, which was the recanting affidavit, neither should a new trial be granted nor should the verdict, judgment and sentence be stricken out. The appellant concedes in his brief that “[wjhether or not the witness lied is, of course, a question not to be raised on a Motion to Strike.” Yet, in spite of this concession, the alleged perjury seems to be the real foundation of the appellant’s contention. Essentially the case seems to amount to a motion for a new trial.

(A timely motion for a new trial was made in the original case, but was denied.) A motion to strike cannot be made to serve