Davis v. State.

• Decision Date: 14 November 1947
• Docket Number: No. 12.,12.
• Citation: 55 A.2d 702
• Parties: DAVIS v. STATE.
• Court: Maryland Court of Appeals

55 A.2d 702

DAVIS

v.STATE.

No. 12.

Court of Appeals of Maryland.

Nov. 14, 1947.

Appeal from Criminal Court of Baltimore City; J. Abner Sayler, Judge.

Rose Davis was convicted of violations of the lottery law, and she appeals.

Appeal dismissed.

A. David Gomborov, of Baltimore (Gomborov & Gomborov, H. Lee Brill, and A. Jerome Diener, all of Baltimore, on the brief), for appellant.

J. Edgar Harvey, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., and J. Bernard Wells, State's Atty., and Alan H. Murrell, Asst. State's Atty., both of Baltimore, on the brief), for appellee.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, HENDERSON, and MARKELL, JJ.

DELAPLAINE, Judge.

Rose Davis, appellant, George Davis and Mary Hooper were tried by the Criminal Court of Baltimore City, sitting without a jury, on February 10, 1947, on an indictment containing eleven counts charging violations of the lottery law.

Code 1939, art. 27, §§ 405-410. They were found guilty on two counts. On February 26 the Court fined Mrs. Davis $100, George Davis $100, and Mary Hooper $25. Mrs. Davis is appealing here from the judgment against her.

The contention of appellant is that the search warrant, which was issued on January 30, and which enabled the police to obtain the evidence to convict defendants, was invalid because it did not comply with the Maryland Declaration of Rights and the requirements of the criminal statute (Code 1939, art 27, § 306), and hence the Court, in admitting the lottery paraphernalia seized by the police, committed reversible error, because of the provision of the evidence statute (Code 1939, art. 35, § 5) that no evidence in the trial of misdemeanors shall be admissible where the same shall have been procured in consequence of any illegal search or seizure or of any search and seizure prohibited by the Declaration of Rights of this State.

Before Sergeant Thomas Joyce, of the Baltimore City Police, commenced his testimony, the attorney for the defense moved to quash the search warrant. This warrant, issued by Judge E. Paul Mason, commanded Sergeant Joyce, with any necessary and proper assistants, to enter the three-story dwelling at 1905 East Chase Street to search for and seize all lottery books, lottery slips and any other paraphernalia used in the operation of a lottery, and any money used to play thereon, and to arrest John William Davis and any other persons who may be found on the premises playing a lottery or who may be found with lottery paraphernalia in their possession. On entering the second-floor apartment, the police found a considerable amount of lottery paraphernalia, and arrested the three defendants. When the attorney for the defense moved to quash the search warrant, the judge inquired whether he wished the court to admit the evidence subject to exception, and the attorney replied: ‘That is right.’ As soon as Sergeant Joyce testified that he entered the house at 1905 East Chase Street on January 30 with the search warrant, the Court admitted it in evidence without further objection. Shortly afterwards the Assistant State's Attorney offered all of the paraphernalia seized under the search warrant. The attorney for the defense objected to their admission, whereupon the judge remarked: ‘I want to hear the objection to it.’ Before he heard the objection, however, Sergeant Joyce was briefly cross-examined. The judge then heard the argument on the invalidity of the search warrant, but immediately ruled that it was valid. There was not, however, any final ruling on the admissibility of the paraphernalia. It is true that the attorney did object to their admission in evidence; but the judge, instead of making an immediate ruling, admitted them subject to exception. There was no further challenge of the evidence by the attorney, who was not one of the attorneys on this appeal.

Prior to 1872 no appeal from criminal proceedings was allowed in the State of Maryland, except in some comparatively unimportant cases. Mitchell v. State, 82 Md. 527, 34 A. 246. In 1872 the Legislature made it lawful for any accused person or for the State in any criminal case to except to any ruling of the court, and to tender a bill of exceptions as in civil cases, in order to appeal from the ruling to the Court of Appeals. The Act of 1872, which allowed bills of exceptions in criminal cases for the first time in this State, provided that after such an appeal was entered, no judgment should be rendered against the accused, in case he should be found guilty, until the Court of Appeals had determined upon the exception and remanded the case to the trial court. Laws of 1872, ch. 316. Under that Act appeals in criminal cases were taken before sentences were imposed, and they did not bring to the Court of Appeals any rulings on demurrers to the indictments. The only questions that could be considered on appeal were those presented by bills of exceptions. Thus it was possible that the same case might be brought to the Court of Appeals twice: first, on appeal filed before sentence to review rulings on questions presented by a bill of exceptions; later, by petition as upon a writ of error filed after sentence to review alleged errors appearing on the face of the record. It was impossible to bring to the Court of Appeals any ruling on a demurrer and rulings on the evidence on the same record. In civil cases the law was different. When a judgment was entered in a civil case, the appeal brought up the rulings on demurrers as well as on the evidence. Avirett v. State, 76 Md. 510, 515, 25 A. 676, 987. In 1892 the Legislature amended the law by enacting that parties to criminal proceedings shall be entitled to bills of exceptions in the same manner as in civil...