Silverstein v. State

• Citation: 6 A.2d 465,176 Md. 533
• Decision Date: 17 May 1939
• Docket Number: 16.
• Parties: SILVERSTEIN v. STATE.
• Court: Court of Appeals of Maryland

6 A.2d 465

176 Md. 533

SILVERSTEIN v. STATE.

No. 16.

Court of Appeals of Maryland

May 17, 1939

Appeal from Criminal Court of Baltimore City; Joseph N. Ulman Judge.

Louis Silverstein was convicted of violation of statute denouncing lotteries and gambling, and he appeals.

Affirmed.

William Greenfeld, of Baltimore (Henry Lazarus and Arthur Beane, both of Baltimore, on the brief), for appellant.

H Vernon Eney, Asst. Atty. Gen. (William C. Walsh, Atty. Gen and J. Bernard Wells, State's Atty., and Wm. H. Maynard, Deputy State's Atty., both of Baltimore, on the brief), for the State.

Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, JOHNSON, and DELAPLAINE, JJ.

PARKE Judge.

The appellant, Louis Silverstein, was indicted, tried by the Court, sitting as a jury, convicted and sentenced for a violation of the statute against gambling. The traverser was convicted generally under an indictment of twelve counts, which presented the various aspects of the anticipated testimony in regard to several inhibitions of the statute denouncing lotteries and gambling. The only questions for consideration are the rulings on evidence. There were two exceptions taken. The first is ignored by the traverser on brief and in argument and may not be considered on appeal because it is improperly presented. The confusing practice was followed of taking all the testimony of a witness subject to exception. When his examination in chief and cross-examination were closed, the traverser 'made a motion to strike out the testimony and the court overruled the motion and granted the defendant an exception.' Although much of the testimony of the witness is clearly admissible, it is not the function of the court of trial to assume and fulfil the duty of an advocate, and divide and distinguish a mass of testimony with reference to its admissibility in evidence and, after thus laboring, to group and formulate the questions, to rule with reference to every particular problem of evidence involved.

If counsel make at the trial table a motion to exclude the general testimony of a witness, which has been taken subject to exception, but fail to specify and designate the particular testimony which is sought to be excluded, no proper basis is afforded to grant the motion, and an exception thereupon taken may raise no question for determination on appeal. Bogart v. Willis, 158 Md. 393, 397, 398, 148 A. 585.

Under the second bill of exceptions the propriety is raised of the Court's refusal to exclude certain testimony on the theory that it had been obtained by means of an unlawful search and seizure and was inadmissible under Section 4A of Article 35 of the Code, Supp.1935. This statutory provision reads: '4A. No evidence in the trial of misdemeanors shall be deemed admissible where the same shall have been procured by, through, or in consequence of any illegal search or seizure or of any search and seizure prohibited by the Declaration of Rights of this State; nor shall any evidence in such cases be admissible if procured by, through or in consequence of a search and seizure, the effect of the admission of which would be to compel one to give evidence against himself in a criminal case.'

It is conceded that there is no error in the admission in evidence of the traverser's coat, a lottery book, lottery slips, which were taken from the pocket of this coat, and torn lottery tickets, which were thrown on the floor of the room in which the traverser carried on a retail grocery store, unless this evidence was obtained by an unlawful search and seizure under circumstances now to be stated. The store is on the first floor of a building at the corner of two streets in Baltimore City. The business is conducted in a room about twelve feet wide and twenty- five feet long. The store is entered from the street by a door in the front of the room. A long counter extends along the length of the inside wall of the room, and a short counter is across the room at the rear.

On information received, a detail of policemen in plain clothes was sent to investigate if the law against gambling was being violated on the premises of the traverser. On their arrival officer Scott opened the store door, and went in while the other members of the detail stayed outside. As he entered the officer found eight or ten persons in the store room. The proprietor and traverser was standing back of the long counter, about eight feet from the doorway, and was engaged in waiting on a customer. The traverser's clerk is one Stewart, who, dressed in a white coat, was behind the short counter at the back of the store. In front of this counter and before Stewart, a person named Adams was standing. He was the only person near Stewart, whose head, shoulders and hands were seen by the officer. As the officer walked toward Stewart, he observed that he was bending forward, was engaged in writing in a book on the counter between him and Adams. While the officer was walking by the traverser, the latter observed the officer, and shouted 'Watch out', and, in about two steps, the officer reached the counter where the clerk was writing numbers in the book. At the warning cry given by the traverser, all eyes turned toward the door, and the officer saw Stewart take the book from the counter and drop it behind or beneath the counter.

A few minutes later, the traverser approached the officer and asked that he wanted, and the officer replied that he wanted 'to write a number', which is a form of gambling by lottery. The answer by the traverser was 'I don't write numbers'. And the officer said 'all right' and remained at his station while the traverser returned to the long counter to serve customers. Meanwhile, some one was seen by the officer to signal to the traverser from the doorway, and a few minutes later the detail of policemen came in, and the officer gave them an account of what he had seen.

On cross-examination, it was developed that the officer did not know Adams, nor whether of a certainty he was a customer for a lottery slip or of the grocery store nor in what relation and in what respect the entries in the book were made. The officer further stated that the warning given by the proprietor could have been addressed to any one in the store. These qualifications, however, do not make unreasonable and improbable the grounds for the conclusion of the officer that gambling by lottery was being carried on in his presence. There was no occasion for the proprietor to utter a warning. No one was unaware of an imminent physical danger or situation which required an immediate and peremptory warning. Nor did any one engaged in the course of an honest transaction need any protective admonition. The warning was reasonably and naturally understood to be adressed to some present wrongdoer.

The customers and the clerk did one thing of indefinite significance in common. They all looked toward the door as the natural entrance for the danger against which the traverser warned. The clerk did more, and his action as well as the sudden outcry of the traverser, were the two things which were indicative of personal guilt. The clerk, at the warning given, swept the book, in which the officer had seen him writing numbers, off the counter and out of sight behind the counter. An innocent entry in a book of account between a grocer and his customer requires no concealment, and certainly is a transaction wholly inconsistent with any necessity for the precipitate removal of the book and its designed, quick hiding by the clerk at the first sound of alarm by the grocer.

All of these facts and circumstances were observed by the officer, and were of such a nature as would justify a careful and prudent person in the belief that a crime against gambling as denounced by the statute had been committed in his presence or view by the proprietor and his clerk, and that it was his duty to make their arrest without a warrant. Mitchell v. Lemon, 34 Md.

176, 180, 181; Boyd v. Cross, 35 Md. 194, 199, 200; Roddy v. Finnegan, 43 Md. 490, 501, 503, 504; Jordan v. James & Holstrom Piano Co., 140 Md. 207, 211-213, 117 A. 366; Edger v. Burke, 96 Md. 715, 724, 725, 54 A. 986.

The policeman who had first entered the store remained at his post in front of Stewart, with the counter between them. He there reported to Sergeant Amrein, the police officer in charge of the detail, what he had seen. The sergeant called the traverser and told him of the information received, and that he was going to look back of the counter. The sergeant did so and found the book, which Adams had tried to hide. The book proved to be one used in the conduct of a lottery. On one of the pages, the officer found 'that lottery had been written, but it had not been finished'. The sergeant picked the book up and showed it to the traverser and to his clerk Stewart. In addition to the book for a lottery, the sergeant found torn lottery tickets lying alongside of the book. Addressing the clerk, the sergeant, in the presence of Silverstein, inquired of Stewart for whom he was writing numbers. The clerk replied that Silverstein owned the book and that he was writing 'numbers' for the traverser. The sergeant, without a warrant, then placed the traverser under arrest. Whereupon the traverser took of his coat and laid it down on the counter, and the sergeant put his hand in the lower left hand pocket of the coat and brought out some lottery tickets. On the sergeant's inquiry of the traverser whether the tickets were his, the accused replied that he knew nothing about them, and he gave no other explanation of their possession. It was thus conclusively established that a gambling device was in operation in the presence and within the view of the first officer when he went...