filed the following dissenting opinion.
The majority, in considering the contentions of the appellant one by one, found, among other things, no prejudicial error in the refusal of the sentencing judge to afford the appellant an opportunity to refute or discredit the information the judge had received from the former attorney of the wife concerning the previous marital difficulties that had arisen between the appellant and his wife. The finding appears to have been based in part on the assumption that the sentencing judge was influenced only by the original presentence report and not by the information the judge subsequently sought and received from the wife’s attorney and in part on the conclusion that the judge, having heard the testimony of the wife at the first sentencing hearing in mitigation of sentence, thought there was no reason for her to testify again at the second sentencing hearing in an attempt to rebut the information received from her attorney. In my opinion, however, the sentencing of the appellant under the facts and circumstances of this case was, as he contends, a violation of his right to procedural due process. Moreover, it is a question which is reviewable on appeal. Williams v. New York, 337 U. S. 241 (1949). Cf. Rowe v. State, 234 Md. 295, 302, 199 A. 2d 785, 789 (1964).
While the procedures in the sentencing process are essentially different from those in the trial process in that the sentencing judge may ordinarily consider all information he receives, regardless of the source from which it came, there are limits to the use thereof beyond which the judge may not go. And should he do so, even unwittingly as was undoubtedly the case here, the judge will have abused his judicial discretion.
In Driver v. State, 201 Md. 25, 92 A. 2d 570 (1952), after stating that the sentencing judge can exercise a broad dis*475cretion in the use of sources and types of evidence to assist him in determining the kind and extent of punishment to be imposed, and setting forth the factors which the rules of procedure indicate the sentencing judge should consider to aid him in the intelligent exercise of his discretion, this Court, nevertheless, pointed out the limitations on the use of information received during the course of a presentence investigation. Besides the general prohibition against considering evidence that is not within the limits fixed by law, there is a specific requirement that any information that might influence the judgment of the sentencing judge, which was not received from the defendant himself or was not given in his presence, should (without necessarily disclosing its source) be called to his attention so as to afford him an opportunity to refute or discredit it.
The record in this case is far from satisfactory. Since, however, much of the substance of this controversy is the subject of affidavits filed on behalf of the appellant as well as the State, both of which were accepted as evidence in lieu of testimony the judge declined to hear, there is no reason why this Court should not take into consideration the same facts and circumstances it is apparent the lower court considered in imposing sentence. This would include such parts of the written and oral information the record discloses the sentencing judge received and considered as well as the pertinent events which occurred before and after the receipt thereof.
After his conviction for an assault on another man, the defendant was allowed to remain on bail pending the making of a presentence investigation by the county probation department. Following the completion and filing of the report, the defendant was twice called for sentencing. On one occasion (April 27, 1964), after the presentation of information in mitigation of sentence, including the testimony of the wife of the defendant to the effect that he had been a good husband and father, and a statement by counsel seeking probation under strict supervision, the judge deferred sentencing to give himself more time to further consider the question, but in the meantime placed the appellant in the custody of *476the sheriff to meditate on the precariousness of his situation. The report, in addition to disclosing a series of prior offenses, for one of which he had previously been placed on probation, also informed the judge of an assault on the wife by her husband and the subsequent withdrawal by her of the warrant for his arrest. On the second occasion (May 13), the sentencing judge told counsel (apparently at the bench) that while the wife had given him the impression at the first hearing that the defendant had been a good husband, he had received information to the contrary from a part-time assistant state’s attorney (who had not participated in the prosecution of this case) in the meantime and informed him of the substance of the allegations made by the part-time prosecutor. The judge, however, refused to permit either the wife or counsel to present further information in mitigation of punishment or to grant a one-day postponement for the purpose of preparing a rebuttal to the information furnished by the wife’s former attorney, and forthwith sentenced the appellant to 360 days in prison. On the day sentence was imposed, the judge had asked the assistant state’s attorney for, and had been given, detailed information concerning the marital difficulties of the appellant and his wife which he in his capacity as a private practitioner had acquired in consultations with the wife about bringing a divorce action against her husband. It appears that the judge refused to hear the wife again because he believed she had been untruthful at the first hearing. It further appears that the judge refused to permit counsel for appellant to present additional information or to grant a postponement for that purpose because he had then decided to sentence the appellant to prison as he stated he had been inclined to do as of the first sentencing hearing. Subsequent to the imposition of sentence, the appellant moved for modification or reduction of the sentence and for the disqualification of the sentencing judge. At the hearing of these motions (May 22), the wife was allowed to testify as to the visit of the probation officer and what she had told him, but she was not permitted to explain the information the judge had received from her former attorney or the information contained in his affidavit. Nor would the judge *477permit the calling of the attorney for the purpose of examining him as to the contents of his affidavit. It was at these hearings that the judge stated the wife was not truthful when she testified under oath at the first sentencing hearing and that he had been ready to sentence the appellant to prison at that time. At these hearings, the judge also indicated that he did not consider the information received by him from the wife’s former attorney to be confidential because she had waived the attorney-client relationship when she informed the probation officer as to the appellant having assaulted her. Although the sentencing judge further indicated at these hearings that it was the information set forth in the report of the investigation made by the probation department and not the information the judge received as the result of a subsequent investigation the judge himself initiated (as he had the authority to do) that induced the prison sentence of 360 days, the record makes it clear (see Appendix, p. E. 45) that it was the information the judge received from the wife’s attorney that primarily influenced his judgment in imposing sentence. Both motions, following a lengthy and somewhat heated colloquy in open court between counsel for the appellant, the sentencing judge and the assistant state’s attorney who prosecuted this case, were denied and this appeal followed.
Although the violation of the attorney-client relationship is one that could only be claimed or waived by the wife, that, in my opinion, does not mean that we are not here concerned with the propriety of receiving the privileged information insofar as its disclosure infringed any of the rights of the appellant. As to these points, there is authority for the proposition that evidence which would have had no probative value at the trial (as was the case here with respect to the alleged wife-beating for which the appellant was never tried and convicted) is not relevant in determining the sentence to be imposed. Cf. Ex Parte Hoopsick, 91 A. 2d 241 (Pa. 1952). And there are cases which hold that statements which come under the ban of hearsay evidence should be disregarded in a presentence hearing. See, for example, State v. Pope, 126 S. E. 2d 126 (N. C. 1962) and State v. Bodie, 49 S. E. 2d 575 (S. C. 1948). In any case, even if it was not improper *478for the judge to seek and the attorney to disclose the hearsay and privileged information, it is clear that the appellant should have been afforded an opportunity to rebut it. Driver v. State, supra (at p. 32 of 201 Md.), explicitly requires such a practice, as do a majority of courts in other jurisdictions. See, for example, People v. Giles, 161 P. 2d 623 (Cal. 1945) [action of judge in receiving information as to bad character of defendant out of his presence was improper where the accusation influenced the judge in imposing sentence] ; and Kuhl v. District Court, 366 P. 2d 347 (Mont. 1961) [receiving information privately before sentencing as to prior record of defendant which had effect of influencing judge was improper]. See also 49 Colum. L. Rev. 567.
Not to allow the appellant an opportunity to rebut the information would seem to be a clear denial of procedural due process. While the sentencing judge has a wide discretion so far as the presentence investigation goes, it seems to me that his receipt of hearsay and privileged information which he himself sought was a clear abuse of discretion and a practice not contemplated by the rules.
In my opinion the facts and circumstances of this case compel a remand for a redetermination of the sentence without taking into consideration information improperly received. Cf. Farrell v. State, 213 Md. 348, 131 A. 2d 863 (1957).