Appeal from the Criminal Court of Baltimore (ALLEN, J.).
The cause was argued before Henderson, Hammond, Marbury and Sybert, JJ., and Anderson, J., Associate Judge of the Sixth Judicial Circuit, specially assigned.
HENDERSON, J., delivered the opinion of the Court.
On December 31, 1961, appellee and cross-appellant was convicted of illegal possession and control of heroin, in a non-jury case before Judge Carter, and sentenced to twelve years in the House of Correction. He had been convicted on two prior occasions of violations of the narcotics law. He did not appeal, but on August 20, 1962, filed a petition for post conviction relief. Counsel was appointed and a hearing was held before Judge Allen. There were subsequent amendments and hearings, and on June 26, 1963, Judge Allen ordered his release. The order was stayed pending an application by the State for leave to appeal. Leave to appeal and leave to file a cross-appeal were granted, and the case was briefed and argued in this Court.
The ground upon which Judge Allen ordered the petitioner's release was that the petitioner was denied due process of law because his conviction "for the alleged current offenses of possession and control of narcotics were without legal basis * * *." The State contends that Judge Allen passed on the sufficiency of the evidence, not a proper subject of inquiry under the Post Conviction Procedure Act, and that in any event the evidence was sufficient. To understand the contentions it is necessary to summarize the facts.
Officer Buchanan, attached to the narcotics squad of the Baltimore City Police, accompanied by an informer and addict named Sylvester Holman, known as "Dukie," went to Fulton and Baker Streets about 4:20 p.m. on October 20, 1961. They met Brown, who was an acquaintance of Holman's and an addict. Holman asked Brown if he could get some heroin for him. Brown readily agree to do so and Holman gave him ten dollars in marked money. Brown went away and returned a few minutes later with a glassine envelope containing heroin. Whether Brown got the envelope from his room, or from a
third person, was not shown. Officer Buchanan testified that he saw Brown had the envelope to Holman, and that Holman gave it to the witness. The officer had searched Holman before they went on the expedition. Officer Buchanan took the envelope to the United States Customs laboratory, and upon verification as to what it contained, arrested Brown on October 25, 1963. Brown was interviewed by Captain Carroll and admitted meeting Dukie and Officer Buchanan, but denied that he produced any drug. Brown was charged and tried as a third offender for the sale, dispensing, possession and control of illegal narcotics. However, when the evidence at the trial showed that the sale was made to Holman, not to Officer Buchanan as alleged in the indictment, Judge Carter found him not guilty on the first two counts, but guilty of illegal possession and control. The appellee stipulated at the trial to the fact of his two prior convictions on February 4, 1957, and December 18, 1959, as alleged in the ninth, tenth, eleventh and twelfth counts of the indictment.
Code (1963 Supp.), Art. 27, sec. 645 A (b), states that the remedy provided by the Post Conviction Procedure Act "is not a substitute for, nor does it affect any remedies which are incident to the proceedings in the trial court * * * or any remedy of direct review of the sentence or conviction." We have repeatedly held that questions of the petitioner's guilt or innocence, or the sufficiency of the evidence to convict, are not open on post conviction. Duff v. Warden, 234 Md. 646, 648; Slater v. Warden, 233 Md. 609, 611; Harrington v. Warden, 232 Md. 621, 626; Drehoff v. Warden, 231 Md. 654, 656. The appellee seeks to draw a distinction between the legal sufficiency of evidence, and the absence of any evidence at all. He cites Thompson v. Louisville, 362 U.S. 199, Garner v. Louisiana, 368 U.S. 157, and Taylor v. Louisiana, 370 U.S. 154. See also the annotation in 80 A.L.R. 2d 1362. He also cites United States v. Myers, 301 F. 2d 782 (C.A. 3d.), cert. den., 371 U.S. 841; Torrance v. Salzinger, 297 F. 2d 902 (C.A. 3d.), cert. den., 369 U.S. 887; Penn v. Salzinger, 177 A.2d 619 (Pa.), cert. den., 369 U.S. 888; Faust v. North Carolina, 307 F. 2d 869 (C.A. 4th), cert. den., 371 U.S. 964. Cf. Grundler v. North Carolina, 283 F. 2d 798, 802 (C.A.
4th). In Faust it was said (p. 872) that "there is a difference between a conviction based upon evidence deemed insufficient as a matter of state criminal law and one so totally devoid of evidentiary support as to raise a due process issue."
If we assume, without deciding, that the distinction is valid, and that the facts in the instant case do raise an issue of due process, we find no legal basis for the action taken. Judge Allen's holding was that even assuming the facts to be as stated and found by the trial court, the possession and control was in law that of the informer or officer. It was predicated upon Henderson v. United States, 261 F. 2d 909 (C.A. 5th), a case wherein the accused was convicted of acquisition, concealment and sale of narcotics. The Court of Appeals, in reversing and remanding, held that the defendant had been entrapped and went on to say (p. 912) that "the defendant acted, not for herself but as the subagent of, and conduit for, the government's provocator, and because, acting for the government, he was not guilty of any offense, neither was she," citing United States v. Sawyer, 210 F. 2d 169 (C.A. 3d.) and Adams v. United States, 220 F. 2d 297 (C.A. 5th), both cases where the defendant was convicted only of selling heroin. See also United States v. Prince, 264 F. 2d 850 (C.A. 3d.). In Coronado v. United States, 266 F. 2d 719, 720 (C.A. 5th), cert. den., 361 U.S. 851 the Court said:
" Henderson and related cases held that if the accused acted as a purchasing agent for the buyer of narcotics and did not act as or represent the seller, he cannot be convicted of making an illegal sale of narcotics. * * * The defense presupposes a sale. * * * It does not apply in the instant case since Coronado was not convicted of selling narcotics. He was convicted of unlawfully acquiring and facilitating the transportation and concealment of heroin." For similar holdings see Vasquez v. United States, 290 F. 2d 897, 898 (C.S. 9th), and Washington v. United States, 275 F. 2d 687, 690 (C.S. 5th). The crimes of which Brown was convicted, possession and control, may be equated with the crimes of which the defendants ...