Adams v. State, 162

• Decision Date: 09 May 1952
• Docket Number: No. 162,162
• Citation: 88 A.2d 556,200 Md. 133
• Parties: ADAMS et al. v. STATE.
• Court: Maryland Court of Appeals

Page 133

200 Md. 133

88 A.2d 556

ADAMS et al. v. STATE.

No. 162.

Court of Appeals of Maryland.

May 9, 1952

E. Paul Mason, Jr., Baltimore, for appellants.

Kenneth C. Proctor, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., Anselm

Sodaro, State's Atty., and Wm. C. Rogers, Jr., Asst. State's Atty., Baltimore, on the brief), for appellee.

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

HENDERSON, Judge.

The appellants, a duly licensed physician, a registered nurse, and his secretary, were charged under eight indictments with the crime of abortion, Section 3, Article 27 of the Code, and under a ninth indictment with conspiracy to violate the statute. Trial before the court and a jury resulted in verdicts of guilty under the third and sixth counts of six of the indictments, under the third count of two of the indictments and under the first, fourth, fifth, sixth, seventh, eighth, ninth, tenth and twelfth counts of the conspiracy indictment. Motions for new trial were heard before the Supreme Bench of Baltimore City and overruled. In each case, appellants Adams and Nelson were sentenced to serve not more than one year in the Reformatory for Women, which sentences were suspended, and to pay a fine of $1,000. In each case appellant Timanus was sentenced to serve six months in the House of Correction and pay a fine of $1,000. Sentences in all cases were made concurrent.

The first point raised concerns the validity of the search warrants under which certain evidence was obtained from the premises where Dr. Timanus had his office. It is contended that the warrants were issued without a proper showing of probable cause, that the court erred in refusing to allow the defendants to take testimony with respect to the applications for the warrants upon a proffer to prove that substantially all the evidence set forth therein was obtained by 'wire-tapping', and that the warrant was improperly served.

Without attempting to set out in detail the activities and observations of the police narrated in the search warrant, which occupy nineteen printed pages of the appendix, it is sufficient to note that they cover a period between May 1, 1950 and August 11, 1950 during which the office was under observation on nine different occasions and the home of the secretary, Miss Nelson, on four different occasions. In this period it was observed that visits were made to the office by at least fifty different women between the ages of twenty and forty, many of them from out of town. A number of these patients stayed overnight in the premises; many of them returned on the day following their initial visit. There was considerable activity over a period of two or three days, and at other times no activity at all. At times, apparently during normal business hours, there was no one in the office. Apparently, many of the appointments were made at the home of the secretary, Miss Nelson. In addition, the warrant contained a sworn statement given to the police on August 14, 1950 by a Mrs. Lenoir, concerning arrangements for an abortion performed on her by Dr. Timanus on March 23, 1950. This statement together with the observations of the police, seems clearly sufficient to justify 'a man of prudence and caution in believing that the offense' of abortion was being committed. Wood v. State, 185 Md. 280, 285, 44 A.2d 859; Cf. Goss v. State, Md., 84 A.2d 57, 58.

The appellants argue that Mrs. Lenoir's statement, while it clearly shows that an abortion was performed on her, does not show that it was illegal, because she had previously consulted a Dr. Richardson, who put her in touch with Miss Nelson and gave her a slip addressed 'to whom it may concern' stating 'it was imperative that a curettage be performed' on her. The crime of abortion, as defined in Section 3, Article 27 of the Code, contains a proviso that 'nothing herein contained shall be construed so as to prohibit * * * the production of abortion by a regular practitioner of medicine when, after consulting with one or more respectable physicians he shall be satisfied that the foetus is dead, or that no other method will secure the safety of the mother.' But there is nothing in her statement to indicate that Dr. Richardson ever examined her or made a finding that an operation was necessary to secure her safety. Apparently the only basis for his reference and the slip he gave her was her statement to him that she was pregnant and then unmarried. Nor is there anything in her statement to indicate that Dr. Timanus made such a finding, or that he ever saw or communicated with Dr. Richardson. If the affidavit is 'sufficient on its face, it cannot be contradicted as a reason for quashing the search warrant.' Goss v. State, Md. supra, 84 A.2d at page 58; Smith v. State, 191 Md. 329, 334, 62 A.2d 287, 5 A.L.R.2d 386.

The contention as to the proffer to show that some of the evidence on which the affidavit was based was obtained by 'wire-tapping' is without merit. Whether evidence obtained by such a method could be excluded under any circumstances may be open to doubt in the light of Bratburd v. State, Md., 88 A.2d 446. In the instant case no evidence so obtained was offered by the State and the defendants' proffer to produce testimony to invalidate the warrant was properly refused. Goss v. State, supra; Smith v. State, supra. Moreover, we have held that a warrant should not be quashed merely because some of the evidence on which it is based was inadmissible, if it contains sufficient proper evidence to show probable cause. Kapler v. State, Md., 71 A.2d 860, 863; Cf. Bratburd v. State, 193 Md. 352, 357, 66 A.2d 792. In the instant case there was such other evidence in the warrant.

The contention as to the service of the warrant is likewise without merit. The warrant was not shown to Dr. Timanus at the time of his arrest, but was shown to him when he was on his way to the police station. Miss Nelson testified that the police sergeant showed her his badge before the police entered the operating room. Dr. Timanus did not ask for their authority or object to their entry, but merely asked them to step out until his patient was made presentable. It might well be held that his actions constituted a waiver, as in Reed v. State, Md., 79 A.2d 852, 853 and Hubbard v. State, Md., 72 A.2d 733, 735. In any event Section 306, Article 27 of the Code, as amended by Chapter 81, Acts of 1950, does not require the service or reading of the warrant or make failure to serve the warrant a ground for quashing it. Even under the federal statute, which requires service of a copy of a warrant, it has been held that this provision is substantially complied with by service after the seizure. Nordelli v. United States, 9 Cir., 24 F.2d 665, 666.

The appellants next contend that the court erred in denying their motion that 'the court interrogate each prospective juror, or permit counsel for the defendants to interrogate each prospective juror, as to the juror's religious or church affiliation, if any * * *'. The court propounded to each panel the following question: 'Is there any reason which will prevent any one of you from giving each of the defendants a fair and impartial trial and finding a verdict based only on the law and the evidence, such as your knowledge of the case or the parties or religious scruples or any other reason? If so, please raise your hand.' One of the prosective jurors did in fact raise his hand, stating: 'I don't approve of abortions.' The court then challenged him for cause.

While we have found no Maryland case directly in point, it is well-established that in examination of prospective jurors on their voir dire the court may frame its own questions and not permit cross-examination by counsel, that the extent of the examination rests in the sound discretion of the court, and that the purpose of the inquiry is to ascertain 'the existence of cause for disqualification and for no other purpose.' Emery v. Asher, Md., 75 A.2d 333, 336; Corens v. State, 185 Md., 561, 45 A.2d 340; Cohen v. State, 173 Md. 216, 195 A. 532, 196 A. 819; Lee v. State, 164 Md. 550, 165 A. 614; State v. Welsh, 160 Md. 542, 154 A. 51; Handy v. State, 101 Md. 39, 60 A. 452. It would obviously serve no useful purpose to interrogate prospective jurors about their religious or church affiliation unless such affiliation would be a ground for disqualification. Religious or ethical beliefs as to the practice of abortion may range from a view that abortion, or even contraception, in any form or under any circumstances is morally wrong, to a view that the prevention of an unwanted child may be morally right, under circumstances not directly related to the mother's physical survival. But unless such beliefs would prevent an impartial consideration of the evidence and a proper application of the existing law, they would not disqualify. The court's inquiry was directed towards religious scruples with this proper qualification. We find no abuse of discretion. Cf. State v. Maxwell, 151 Kan. 951, 102 P.2d 109, 128 A.L.R. 1315. United States v. Daily, 7 Cir., 139 F.2d 7, and United States v. Barra, 2 Cir., 149 F.2d 489, 491.

At the end of the whole case, the appellants moved for directed verdicts on the ground that the evidence was legally insufficient to warrant conviction. The motions were overruled. The appellants argue that although the...