Berry v. State
| Decision Date | 17 March 1953 |
| Docket Number | No. 102,102 |
| Citation | 95 A.2d 319,202 Md. 62 |
| Parties | BERRY v. STATE. |
| Court | Maryland Court of Appeals |
Milton Talkin, Baltimore (Warren J. Weinberger, Baltimore, on the brief), for appellant.
Ambrose T. Hartman, Asst. Atty. Gen. (Edward D. E. Rollins, Atty. Gen., Anselm Sodaro, State's Atty., and Wm. C. Rogers, Jr., Asst. State's Atty., Baltimore, on the brief), for appellee.
Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.
The legal sufficiency of the evidence to sustain a conviction for violation of the lottery laws was suitably challenged by the appellant in the Criminal Court and is the subject of inquiry on this appeal. Convicted by the Judge, sitting without a jury, on the second count of an indictment, charging him with the keeping of a room for the purpose of selling lottery tickets, and on the fifth count charging unlawful possession of lottery paraphernalia, the appellant was sentenced to ten months in the Maryland House of Correction and was fined $1,000 and costs.
The State's testimony showed that on May 21, 1952, officers of the Baltimore City Police Department executed a lottery search warrant by entering the basement of 897 Park Avenue. The police discovered that there were two apartments in the basement, with a connecting bathroom, the doors to which could not properly be closed or locked. Each apartment had a separate street entrance. A door on Biddle Street led to the rear apartment occupied by Alice Rehm, and a door on Park Avenue led to the front apartment occupied by Mamie Harris, the appellant's niece. One could go freely from one apartment to the other.
Normally, recitals in a search warrant are not admissible in evidence although testimony, if relevant to the issues, may be introduced even if it parallels matters alleged in the warrant. In this case the inquiry as to the basis for the warrant was opened by the defendant and followed up by the State and we need not concern ourselves with any question as to the propriety of any rulings on this testimony. Nor is any question raised as to the validity of the warrants.
On May 16, 1952, an officer had been sent to observe the premises at 897 Park Avenue. At different times between 12:30 and 1:30 P.M. he saw seven men approach the Biddle Street entrance, and after looking around, enter the basement and leave after a time interval of not more than three minutes. Similar events were observed by the officer during the same hour on the following day. A police lieutenant and an officer continued surveillance of the premises on May 20, 1952. In a short time seven men were again seen to enter the basement, the last of whom, the appellant, was stopped by another man. They held a conversation, and the officers testified that they saw the appellant withdraw a bundle of slips from his pocket which both men studied, and the appellant made some notations upon them and then entered the premises through the Park Avenue entrance. Undisputed testimony of the officers established that on all three occasions while the place was under observation, among those entering the premises was the defendant who used a key each time to gain access. Of signal importance was the testimony that some of those who entered through the Park Avenue door made their exit on Biddle Street, and that others who entered through the Biddle Sreet door emerged on Park Avenue. The officers returned a fourth time on the 21st armed with the search warrant. After completing the search and before leaving the premises, the lieutenant noticed the appellant standing outside the Park Avenue door and asked him to come in. In reply to the former's questions, the latter denied knowledge of a lottery and invited the lieutenant to search his person. This invitation the officer accepted. No lottery tickets or other directly incriminating articles were found, but the search yielded a key to the Park Avenue door. Appellant told the lieutenant that his nephew had formerly occupied the apartment but that now his niece, Mamie Harris, was the occupant.
Summarizing, it may be said that the evidence discovered in the front apartment is very meager and standing alone probably constitutes an insufficient foundation for a conviction. The paraphernalia found in the rear apartment, however, shows a sizable lottery operation. The first question, therefore, is whether the appellant is properly chargeable with what the search produced in the rear apartment. We are of the opinion that the frequent appearances of the appellant while the tenants of both apartments were at work, coupled with his possession of a key affording him access to both apartments, would permit a rational inference that the...
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