Hubin v. State

• Decision Date: 13 January 1942
• Docket Number: 42,43.
• Citation: 23 A.2d 706,180 Md. 279
• Parties: HUBIN et al. v. STATE (two cases). [*]
• Court: Maryland Court of Appeals

23 A.2d 706

180 Md. 279

HUBIN et al. v. STATE (two cases). ^[*]

Nos. 42, 43.

Court of Appeals of Maryland

January 13, 1942

Appeals from Criminal Court of Baltimore City; J. Craig McLanahan Judge.

Thomas M. Hubin, Edward Leon, Allen Maged, Ceval Neal and Francis Schussle were charged with bookmaking, and Allen Maged was acquitted and remaining defendants were convicted. From the judgment of convictions and an order overruling a motion to quash the indictment, Edward Leon, Ceval Neal and Francis Schussle appeal.

Affirmed.

Eldridge Hood Young, of Baltimore (Gerald Kerr, of Baltimore on the brief), for appellants.

Robert E. Clapp, Jr., Asst. Atty. Gen., and Paul C. Wolman, Asst. State's Atty., of Baltimore (William C. Walsh, Atty. Gen., and J. Bernard Wells, State's Atty., and Anselm Sodaro, Asst. State's Atty., both of Baltimore, on the brief), for appellee.

Before BOND, C.J., and SLOAN, JOHNSON, DELAPLAINE, COLLINS, FORSYTHE, and MARBURY, JJ.

DELAPLAINE Judge.

Edward Leon, Ceval Neal and Francis Schussle are appealing from convictions in the Criminal Court of Baltimore City on the statutory charge of bookmaking. Code, art. 27, sec. 291.

On June 26, 1940, Sergeant Ralph Amrein of the Baltimore City police obtained a search warrant upon his affidavit that he had probable cause to believe that the law was being violated in rooms 309 and 311 in the Old Town Bank building in Baltimore. The police officers went to the third floor of the building with the search warrant, and on finding the door to room 311 locked, entered room 309, where they arrested Thomas M. Hubin and Allen Maged. The officers were then able to pass through an unlocked door to room 311, where they caught Leon, Neal and Schussle, appellants, as they were taking bets over the telephone. Seizure was made of a lot of race horse bets and other bookmaking paraphernalia, and also $1,110 in cash, which had been thrown behind the radiator.

In October, 1940, Maged was acquitted by the court, but Hubin and the appellants were tried by jury and found guilty. In February, 1941, after the Supreme Bench of Baltimore City granted new trials, Hubin and the appellants were again tried and convicted by a jury, and were thereupon sentenced to imprisonment. The Court subsequently overruled a motion to quash the indictment. The motion had been filed by the defendants on the theory that the search warrant had been issued without probable cause upon information unlawfully obtained by tapping telephone lines. Hubin did not appeal either from the sentence or from the order overruling the motion to quash.

The principal question in this case is whether evidence obtained by means of wire tapping is admissible in the courts of this State. Prior to the enactment of the Bouse Act in 1929, Maryland followed the ancient rule of the common law that evidence is not rendered inadmissible by the fact that it was procured by unlawful search and seizure. Meisinger v. State, 155 Md. 195, 141 A. 536, 142 A. 190. The Supreme Court of California explained the reason for the rule in the following language: 'From the necessities of the case the law countenances many devious methods of procuring evidence in criminal cases. The whole system of espionage rests largely upon deceiving and trapping the wrongdoer into some involuntary disclosure of his crime. It dissimulates a way into his confidence; it listens at the keyhole and peers through the transomlight. It is not nice, but it is necessary in ferreting out the crimes against society which are always done in darkness and concealment.' People v. Mayen, 188 Cal. 237, 205 P. 435, 440, 24 A.L.R. 1383. Since 1929 evidence obtained by unlawful search and seizure has been inadmissible in trials of misdemeanors in the courts of the State. Acts of 1929, ch. 194, Code, art. 35, sec. 5; Heyward v. State, 161 Md. 685, 694, 158 A. 897; Silverstein v. State, 176 Md. 533, 540, 6 A.2d 465. Unquestionably it is within the established power of the State to prescribe the evidence which may be received in the courts of its own government. Adams v. New York, 192 U.S. 585, 24 S.Ct. 372, 376, 48 L.Ed. 575, 581. The Legislature has also enacted a law providing that if it appears at any time that there is no probable cause for believing the existence of the grounds on which a warrant was issued, the property seized thereunder shall be restored to the person from whom it was seized. Acts of 1939, ch. 749, Code, art. 27, sec. 306. It is accordingly now held in Maryland that if a search warrant has been issued without probable cause, bookmaking paraphernalia seized thereunder is inadmissible in evidence. Mazer v. State, Md., 18 A.2d 217. If a search warrant does not show probable cause for its issuance, a prosecution based upon the warrant and upon facts discovered in its execution cannot supply deficiencies antecedent to the warrant, and such a prosecution fails before it is begun. Goodman v. State, 178 Md. 1, 11 A.2d 635.

In the decision rendered in the Olmstead case, infra, in 1928, the United States Supreme Court held that the protection guaranteed to American citizens by the Fourth Amendment to the Federal Constitution against unreasonable search and seizure of their 'persons, houses, papers, and effects,' while extending to sealed letters and packages in the mail (Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877), does not extend to telegraph and telephone messages, and therefore the use of evidence of private conversations intercepted by means of wire tapping does not infringe any constitutional right. Chief Justice Taft stated in the opinion of the Court: 'The amendment does not forbid what was done here. There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants. * * * The language of the amendment cannot be extended and expanded to include telephone wires, reaching to the whole world from the defendant's house or office. The intervening wires are not part of his house or office, any more than are the highways along which they are stretched. * * * Congress may, of course, protect the secrecy of telephone messages by making them, when intercepted, inadmissible in evidence in federal criminal trials, by direct legislation, and thus depart from the common law of evidence. But the courts may not adopt such a policy by attributing an enlarged and unusual meaning to the Fourth Amendment.' Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 568, 72 L.Ed. 944, 950, 951, 66 A.L.R. 376 .

The Federal Communications Act of 1934 provides that 'no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person.' 47 U.S.C.A. § 605. The Supreme Court construed this Act to prohibit Federal officers as well as any other persons from testifying in Federal criminal trials as to interstate messages overheard by means of tapping telephone wires. Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314. So it is clear that divulgence of information obtained by wire tapping is unlawful, not because it is repugnant to the Constitution of the United States, but only because it is contrary to statute. Beard v. Sanford, 5 Cir., 110 F.2d 527, certiorari denied 310 U.S. 635, 60 S.Ct. 1078, 84 L.Ed. 1405. Recent adjudications have amplified this view by declaring that the interception of a telephone message, as enraging as it may be, is no worse than any other form of eavesdropping which the law countenances. Foley v. United States, 5 Cir., 64 F.2d 1, 4; United States v. Goldstein, 2 Cir., 120 F.2d 485, 491.

In 1939 the Supreme Court handed down two further decisions on the subject of wire tapping. One held that facts are not rendered inadmissible in a Federal prosecution on the ground that they were learned by wire tapping if knowledge of the facts has been gained also from an independent suorce. Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307, 311. The other decision extended the ban against the interception and divulgence of telegraph or telephone communications to intrastate, as well as interstate, messages. Weiss v. United States, 308 U.S. 321, 60 S.Ct. 269, 84 L.Ed. 298. However, in view of the decision in the Olmstead case, we hold that evidence procured by wire tapping is not prohibited in the State courts, either by the Federal Constitution or by the Federal Communications Act. It is true that it is a criminal offense in Maryland, as in most other States, for any person connected with a telegraph or telephone company to divulge the contents or nature of any message. Code, art. 27, sec. 580. But evidence obtained by means of wire tapping is not made inadmissible by the Bouse Act because it does not make any reference to the interception of wire communications. Hitzelberger v. State, 174 Md. 152, 197 A. 605; Rowan v. State, 175 Md. 547, 3 A.2d 753; 134 A.L.R. 615. The action of the trial judge was therefore correct in refusing to quash the indictment.

The defendants also made a demand for particulars ofthe nature of the races, the kind of animals entered in the races, and the amounts of thebets upon the races. The rule is established in Maryland that a motion for a bill of particulars in any criminal prosecution is addressed to the sound discretion of theCourt, and the Court's action thereon is not the subject of an appeal, unless there is some gross abuse of discretion resulting in injury to the accused. The right to a bill of particulars is a privilege allowed to the accused where the indictment is so general that it fails to disclose information sufficient to afford him a fair and...