The full Court. Brune, C. J., delivered the opinion of the Court.
The applicant, Jerome Dyson, was tried by the Criminal Court of Baltimore, sitting without a jury, and was found guilty on two separate charges of robbery with a deadly weapon and on one charge of attempted robbery with a deadly weapon. The robberies occurred on March 20 and April 6, respectively, in 1960, and the attempted robbery occurred in connection with the robbery committed on the latter date. His convictions were affirmed by this court in Dyson v. State, 226 Md. 18, 171 A.2d 505, and his petition for certiorari was denied by the Supreme Court, 368 U.S. 968. Dyson subsequently filed a petition for a writ of habeas corpus in the United States District Court for the District of Maryland in which he alleged as the basis for relief perjury by prosecution witnesses and the knowing use of perjured testimony by the State. The late Judge Chesnut dismissed the petition on February 21, 1962, as premature, because Dyson had not exhausted his available State remedies by seeking relief under the Post Conviction Procedure Act. Judge Chesnut added comments with regard to Dyson's trial and his claims on appeal to this Court, raised by supplemental briefs filed by Dyson pro se, in addition to the brief filed by his counsel, that the State had knowingly used perjured testimony. Judge Chesnut quoted this passage from our opinion (226 Md. at 22): "With reference to the claimed perjured testimony the record discloses merely discrepancies in those witnesses' testimony which was for the consideration of the trial judge, who was required to weigh the evidence." Judge Chesnut continued: "I am not entirely clear as to whether this expressed view of the Court of Appeals should be regarded as a conclusion of the disposition of the point on the merits." He
went on to express the view that if it were, it would be a sufficient reason for denying Dyson's application then before him, but that if it were not conclusive on the merits because of the way in which it was presented and dealt with, then it could be raised at the Post Conviction hearing.
Dyson's application under the Post Conviction Procedure Act followed the above dismissal of his Federal habeas corpus petition as premature. It was denied by Judge Cardin after a hearing at which Dyson was present and was represented by counsel appointed pursuant to the Act. In his combination opinion and order, Judge Cardin filed an order, which also embodied his opinion. In it, he summarized (correctly, we think) the petitioner's allegations as: (1) that he is innocent; (2) that he was inadequately identified by one of the prosecuting witnesses; (3) that another witness perjured himself; (4) that he was not allowed to produce witnesses nor did counsel call witnesses he requested on his behalf; (5) that his attorney was incompetent; (6) that perjured testimony was known to the State prosecutor; and (7) that the State knowingly suppressed material evidence.
As Judge Cardin held, contentions (1) and (2) afford no ground for Post Conviction relief, nor does contention (3) in the absence of any showing of State participation in obtaining or using perjured testimony. The trial judge's finding of fact under contention (6) rejects the applicant's claim of the knowing use by the State of perjured testimony, and we see no occasion to grant leave to appeal as to either contention (3) or contention (6). Contentions (4) and (5) are closely related to each other, and the trial court's finding of fact that the charge of incompetence against the applicant's trial counsel was without merit leads us to deny the application for leave to appeal as to the matters covered by these contentions.
Contention (7) grows out of the examination and cross-examination of a police lieutenant who was called as a witness by the defendant. On direct examination by defense counsel, he testified that the investigation of the case had been under his direction and also testified with regard to matters pertaining to the identification or failure of identification of Dyson at the preliminary hearing. He was then asked:
"Q. Now, did you talk to Mr. Sam Lamartina, 2701 Huntington Avenue and ask him whether he had loaned Dyson any money?
A. The first I knew of Dyson making a loan from him was yesterday morning when you told me here in the courtroom.
Q. Did you talk to Mr. Lamartina?