Bell v. State

• Court: Maryland Supreme Court
• Writing for the Court: Before MARBURY; MARKELL
• Citation: Bell v. State, 200 Md. 223, 88 A.2d 567 (Md. 1952)
• Decision Date: 09 May 1952
• Docket Number: No. 176,176
• Parties: BELL v. STATE.

Page 223

200 Md. 223

88 A.2d 567

BELL v. STATE.

No. 176.

Court of Appeals of Maryland.

May 9, 1952.

Ellis Levin and Abram Joseph, Baltimore (Daniel C. Joseph and Malcolm J. Coan, Baltimore, on the brief), for appellant.

Kenneth C. Proctor, Asst. Atty. Gen. (Hall Hammond, Atty. Gen. and Anselm Sodaro, State's Atty., Baltimore, on the brief), for appellee.

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

MARKELL, Judge.

This is an appeal from a judgment and sentence on conviction, by the verdict of a jury, of possession of lottery tickets and other records. Defendant's contentions are, (1) that a search warrant, being undated, was invalid and should have been quashed, and the evidence obtained under it should have been excluded, (2) that certain prayers of defendant should have been granted and (3) that after the jury had retired, the court, at the request of the jury, over objection by defendant, sent the exhibits to the jury room.

The search warrant was dated 'this ___ day of June', 1951. It recites watchings of the premises on June 16, 1951 and June 18, 1951. The affidavit was dated June 22, 1951. The search was made on June 22, 1951. Art. 27, sec. 306 of the Code, as amended by Chapter 81 of the Acts of 1950, provides that any search or seizure, under the warrant, 'shall be made within fifteen (15) calendar days from the date of the issuance thereof and after the expiration of said fifteen (15) day period said warrant shall be null and void.' On its face the warrant shows that the 'date of issuance' must have been not earlier than June 18, 1951 or later than June 22, 1951, and that the Act of 1950 had been complied with. Counsel has argued learnedly and earnestly that an undated search warrant is invalid, but without citing any authority, in this state or elsewhere, directly (or, we think, otherwise) in point. We have carefully considered this argument and the authorities cited. We are satisfied that omission to date the warrant was an immaterial clerical error, which violated no requirement of the constitution or the act and did not invalidate the warrant. If the legislature had intended that 'an undated search warrant shall be null and void', it would have been easy to say so--in 1939 or in 1950. Such a provision would have given a loophole for the guilty and no real protection for either the innocent or the guilty. What is said in Wilson v. State, Md., 88 A.2d 564, this day decided, regarding new objections to search warrants, is applicable to the instant case.

The warrant authorized search of the premises 655 Hoffman Street. There is testimony, contradicted by Captain Emerson, who applied for the search warrant, and the officers who with him executed it, that on the day of the search, before searching the premises 655 Hoffman Street, the officers broke in the house next door, No. 653. Defendant contends that before Captain Emerson got the warrant for No. 655, he must have got a search warrant for No. 653, and after he had searched No. 655 he got the warrant for No. 655. There is no evidence of any of these alleged facts. When asked on cross-examination, Captain Emerson testified that he did not obtain any warrant for search of No. 653. He also testified that he had the only search warrant at the time of the search. Defendant contends that the jury could infer the alleged facts mentioned from the fact (if found to be a fact) that the officers broke in No. 653. By his second, fourth, fifth and ninth prayers defendant asked the court to rule (2) that in weighing the testimony the jury may take into consideration that a police officer may arrest without a warrant for a misdemeanor committed in his presence, in considering any testimony tending to show that any such misdemeanor occurred in the presence of any officer without immediate action on his part, and (9) that unless they find that at the time of entry of No. 655 the officers were in possession of a valid search warrant, issued before the entry, their verdict must be 'Not Guilty'. Defendant says his fourth and fifth prayers are variants of the ninth. They elaborate in more detail alleged facts above mentioned but not supported by evidence. Judge Sherbow, in his charge to the jury, said, 'Now, the defense offers you this evidence: that the police officials went to the property next door first, and that is offered to you on this basis, that if the police officials who testified in this case did not tell the truth about that, then you ought not to believe what they have said about the rest of the case, on the theory that their testimony is unworthy of belief, and therefore there is no credible evidence before you. If you find that you do not believe the testimony of the police officers who have testified in this case as to what they found in the premises when they arrived there on June 22nd, if you do not believe it, then your verdict should be not guilty. I put it the other way, because the burden is on the State. If you find beyond a reasonable doubt that he did have them in his possession on that date, then your verdict would be guilty on the fourth and fifth counts, because also you will remember the burden lies with the State, it never shifts to the defendant.' We think the charge adequately covered the materiality and relevance (if any) of the testimony regarding No. 653, i. e., none at all except as affecting credibility. By the fourth, fifth and ninth prayers the court...