Asner v. State

• Decision Date: 28 April 1949
• Docket Number: 141.
• Citation: 65 A.2d 881,193 Md. 68
• Parties: ASNER v. STATE.
• Court: Maryland Court of Appeals

65 A.2d 881

193 Md. 68

ASNER v. STATE.

No. 141.

Court of Appeals of Maryland

April 28, 1949

Concurring Opinion April 29, 1949.

Appeal from Circuit Court, Baltimore County; C. Gus Grason, Chief Judge.

Raymond Asner was convicted for receiving, recording and registering a sum of money to bet on the result of a race, and he appeals.

Affirmed.

Sigmund Levin, of Baltimore, and J. Elmer Weisheit, Jr., of Towson (Michael Paul Smith, Paul Berman and Theodore B Berman, all of Baltimore, on the brief), for appellant.

Harrison L. Winter, Asst. Atty. Gen. (Hall Hammond, Atty. Gen. and Francis T. Peach, State's Atty. Baltimore County, and Kenneth C. Proctor, Asst. State's Atty. Baltimore County both of Towson, on the brief), for appellee.

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

MARBURY Chief Judge.

The appellant was tried in the Circuit Court for Baltimore County on a criminal information filed by the States Attorney, which charged him in the first count with receiving and becoming the depository of a sum of money to be bet, gambled and wagered upon the result of a race, and in the second count with recording and registering a sum of money to be bet on the result of a race. Joined in these charges, in the same information, was another defendant named John Tinkler. The case was tried before the court sitting as a jury, and both defendants were convicted, and the appellant was sentenced to pay a fine and to serve a term in jail. He appealed, but his co-defendant did not.

Prior to arraignment, the appellant filed in writing, and the trial court overruled, a motion to quash a search and seizure warrant by means of which certain evidence was procured from the appellant's person. At the trial, some of this evidence was introduced by the State. The questions presented involved the validity of the search warrant which was issued by a justice of the peace for Baltimore County, and commanded the police officer to whom it was directed, with his necessary and proper assistants, to enter into an automobile and search it, and all persons found in it for paraphernalia used in the unlawful operation of gambling on the races, and to bring the body of a man, therein described, and all other persons who might be found in or around the automobile, before the trial magistrate issuing the search warrant, or some other trial magistrate for Baltimore County to be disposed of and dealt with according to law. The warrant also commanded the officer to enter and search the premises known as the Crown Filling Station, located as described therein, and arrest the operator of the Station, also described, and stated to be known as 'Mr. Tinkler', (which was the name of the other defendant) and to search for paraphernalia used in gambling and to bring Mr. Tinkler and the other persons found on the premises before a magistrate to be similarly dealt with according to law.

One of the questions raised is the sufficiency of the affidavit upon which the warrant was issued, and the statements which are repeated in the warrant. The other questions raised by appellant relate to the commands of the search warrant itself. It is contended that since it combines directions to enter and search for gambling paraphernalia in two separate and dissimilar places or things, namely, a filling station in a fixed location, and an automobile in an undesignated place, the warrant is a general warrant, which is prohibited by Article 26 of the Declaration of Rights. A further contention is that the warrant commands the entering into and the search of an automobile without naming or describing the place of such entry and search, or stating even that such entry and search are to be made within Baltimore County. And it is also argued that the commands in the warrant to search all persons found in the automobile and in and about the filling station were not justified by the affidavit on which the warrant was based and were not authorized by the statute.

Article 26 of the Declaration of Rights states that general warrants are illegal and ought not to be granted. In the case of Sugarman v. State, 173 Md. 52, 195 A. 324, decided in 1937, a search warrant was procured for a search of the car of the accused. It was contended that such a search warrant was not authorized under any statute, was unknown in common law, and was invalid, and any articles seized by virtue of such warrant were not admissible in evidence. The court held that the search warrant was invalid, and that, in consequence of the Act of 1929, Chapter 194, now codified as Section 5 of Article 35 of the Annotated Code, the evidence obtained from the search of the automobile should not have been admitted in evidence. However, by the Act of 1939, Chapter 749, codified as Section 306 of Article 27, provision is made for the issuance of search warrants when it is made to appear to the issuing judge or justice of the peace, that there is probable cause that a misdemeanor or felony is being committed 'in any building, apartment, premises, place or thing within the territorial jurisdiction of such judge or justice of the peace'. The warrant authorizes the officer to search the suspected 'individual, building, apartment, premises, place or thing and seize any property found liable to seizure under the criminal laws of this State.' There is, therefore, now statutory authority, which did not exist at the time of the Sugarman case, supra, to search an automobile and its occupants, and the Sugarman case is no longer authority to the contrary. In the Sugarman case it is also stated that there was no error in the lower courts' ruling by which it refused a motion to declare the search warrant void, and to compel the return of the articles found in it to the accused. Article 27, Section 306, provides that if the property taken under a search warrant is not the same as that described in the warrant, or there is no probable cause for believing in the existence of the grounds on which the warrant is issued, a judge must cause it to be restored to the person from whom it was taken 'at anytime,' on application.

We have construed this provision to mean that a hearing on a motion to quash a search warrant may be had either before or during the trial. Smith v. State, Md., 62 A.2d 287. The question, therefore, of the validity of the search warrant in this case was properly before the trial court on the motion to quash.

The State contends that the appellant cannot claim he was injured by the admission at the trial of the evidence obtained by virtue of the warrant, because it was admitted without objection. The only evidence against appellant obtained as a result of a search was the scratch sheet and four slips of paper taken from his person. One officer was called as witness for the State and asked to tell what he found when he searched appellant. Appellant objected, the Court overruled the objection, but this particular officer was not the one who searched appellant. Subsequently, the officer who searched him was put on the stand and asked the same question. No objection was then made and the officer testified about this scratch sheet and the four slips of paper, and they were put in evidence. Timely objection must, of course, be made to any question asked, so that the trial court may have an opportunity to rule upon it, and unless it appears from the record that this was done, there is nothing before us for us to review. O'Connor v. Estevez, 182 Md. 541, 546, 35 A.2d 148; Courtney v. State, 187 Md. 1, 48 A.2d 430; O'Donnell v. State, Md., 53 A.2d 688; Davis v. State, Md., 55 A.2d 702. Appellant, however, contends that since the Court had ruled adversely to him upon the same question asked of the wrong officer, the Court knew that he objected to the same question asked the other officer, and as it had already been ruled upon, there was no necessity for further objection and ruling.

We have always strictly held to the ruling that the trial court must have an opportunity to pass upon objections. Unless it appeared that it did so pass, we could not rule upon the question in the first instance. It would not be fair to the trial judge to do otherwise. But that is not the true reason for the rule. It enables the party framing the question objected to to reframe it, which in many cases can be done so as to render it free of defects. And it prevents cases from having to be retried upon technical or other objections not brought to the attention of the trial court or opposing counsel during a trial, which might there have been disposed of in one way or another, and thus the delay and cost of a new trial might be avoided. We have no intention of relaxing this rule, as we believe it to be salutary and in the interest of justice. But the reasons underlying it are not applicable to the case before us. We think that the appellant did raise the point below sufficiently by his motion to quash, reiterated by his first objection, to enable us to hold that the trial court passed upon the question whether the search of his person, by which the articles offered in evidence were obtained, was illegal, held it was not, and therefore admitted the evidence. If the search was illegal, his rights were infringed by the admission of the articles found. Compare Resnick v. State, 183 Md. 15, 36 A.2d 347; Frank v. State, Md., 56 A.2d 810.

We find, as we have indicated above, that by Section 306 of Article 27, a search warrant may be issued for an automobile and persons in it. See in this connection, Davis v U.S., 328 U.S. 582, 609, 66 S.Ct. 1256, 90 L.Ed. 1453; Carroll v. U.S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790. Of course, such search must be made within the limits of the...