23 A.2d 706 (Md. 1942), 42, Hubin v. State
|Docket Nº:||42, 43.|
|Citation:||23 A.2d 706, 180 Md. 279|
|Opinion Judge:||DELAPLAINE, Judge.|
|Party Name:||HUBIN et al. v. STATE (two cases). [*]|
|Attorney:||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., bo...|
|Judge Panel:||Before BOND, C.J., and SLOAN, JOHNSON, DELAPLAINE, COLLINS, FORSYTHE, and MARBURY, JJ.|
|Case Date:||January 13, 1942|
|Court:||Court of Appeals of Maryland|
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.
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 [180 Md. 282] 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[180 Md. 283] to the person from whom it was seized. Acts of...
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