Bevans v. State

• Decision Date: 03 March 1942
• Docket Number: 17,18.
• Citation: 24 A.2d 792,180 Md. 443
• Parties: BEVANS v. STATE. HELLER v. SAME.
• Court: Maryland Court of Appeals

24 A.2d 792

180 Md. 443

BEVANS v. STATE.

HELLER v. SAME.

Nos. 17, 18.

Court of Appeals of Maryland

March 3, 1942

Appeals from Criminal Court of Baltimore City; Eugene O'Dunne Judge.

Milton Bevans and Leon Heller were convicted of violation of the Rogue and Vagabond Statute, and of the Vagrancy Statute, and they appeal.

Judgment affirmed.

Ellis Levin, of Baltimore (Harry G. Selden, of Baltimore, on the brief), for appellants.

Robert E. Clapp, Jr., Asst. Atty. Gen., and Thomas N. Biddison Asst. State's Atty., of Baltimore (William C. Walsh Atty. Gen., and J. Bernard Wells, State's Atty., of Baltimore, on the brief), for appellee.

Before BOND, C.J., and SLOAN, DELAPLAINE, COLLINS, FORSYTHE, and MARBURY, JJ.

COLLINS Judge.

Milton Bevans and Leon Heller were convicted by a jury in the Criminal Court of Baltimore City on a joint indictment containing four counts. The first three charged them on July 7, 1941, with violating Article 27, Section 559, Flack's Code, commonly known as the 'Rouge and Vagabond Statute' and in general with having upon or about them certain implements which were named in the indictment with intent feloniously to break and enter, in the first count a certain dwelling house, in the second count a certain warehouse, and in the third count a certain storehouse. The fourth count was for violation of the provisions of the Act of 1916, Chapter 653 codified as Section 1147 of the Charter and Public Laws of Baltimore City, 1938 Edition, commonly known as the vagrancy statute. The date charged in the last count was the 7th day of June, 1941, and thence continually until the day of the finding of the indictment which was July 11, 1941. No demurrer was filed to the indictment as a whole or to any of the counts. A number of exceptions were taken at the trial below some of which are abandoned on appeal.

The evidence in general showed that two members of the Baltimore Police Force on July 7, 1941, at about 2 A. M. were cruising in a car north on Central Avenue in Baltimore City at about Pratt Street and noticed two men walking slowly and cautiously south on Central Avenue. These men turned, slowed up at Watson Street and came down to Lombard Street. The officers in their car drove north on Central Avenue, turned into Lombard Street where the two men, who later proved to be the defendants, turned around and stopped. The officers asked them what their mission was down there. They stated that they were looking for negro women. The defendants were taken to the Central District Police Station and were searched by the turnkey. On Leon Heller was found a registration card to a Buick coupe which was listed to a Dorothy Roberts. Heller was asked where he got the registration card and he said that he found it and was going to turn it over to Captain Cooney. The officers then went out and found this Buick coupe parked on the west side of Central Avenue north of Baltimore Street, between two other cars, the windows were down, the doors were open, and the key to this car and an extra large screw driver were on the floor mat. In the car were also found the burglarious implements listed in the indictment and, among other things, a circular with the mechanisms of the manufacturer's locks of the York Safe & Lock Company and a typewritten annotation on the stationery of the Commissioner of Motor Vehicles of the record of conviction of Milton T. Bevans. The officers also testified that the neighborhood where he saw the defendants is made up mostly of business places but that just below that block are houses where colored people live. Both defendants denied any knowledge of the Buick car.

The first, third, and fourth exceptions were taken to the admission of the testimony of the officers that about 12:05 A. M. on Sunday morning, June 29th, which was about a week before the offense charged in the instant case, they were cruising on Baltimore Street and Central Avenue and they noticed a car coming through which was known to them. In the front of the car was the defendant, Heller, with the operator of the car and in the rear, crouched back, was Milton Bevans. It was not the same car as in the instant case. The automobile proceeded east on Baltimore Street, went south on Broadway, came west on Pratt Street. When they reached Central Avenue they slowed up and observed. They then pulled up to Lombard Street and slowed up where the officers stopped them. This was just a block from where the car in the case now before us was found at rest a week later. When questioned by the officers, both of the defendants spoke up and said they were looking for women. The officers looked in the car and found nothing and let them go. The appellants contend that this testimony was not relevant to the charge in this case and its admission could serve no purpose except to prejudice the appellants in the minds of the jury. In this case appellants are charged in the indictment with an intent and any fact which supplies a motive for such act or which constitutes a preparation for it is admissible. Brooke v. Winters, 39 Md. 505; Lamb v. State, 66 Md. 285, 7 A. 399; Baltimore Refrigerating Co. v. Kreiner, 109 Md. 361, 368, 71 A. 1066; Huff v. Simmers, 114 Md. 548, 554, 79 A. 1003; Meno v. State, 117 Md. 435, 440, 83 A. 759; Hitzelberger v. State, 174 Md. 152, 161, 197 A. 605. In ruling on collateral matter, it is presumed that the court did its duty and all reasonable presumption necessary to uphold its rulings will be indulged. Brooke v. Winters, supra; Maryland Elec. Ry. Co. v. Beasley, 117 Md. 270, 277, 83 A. 157; Baltimore & Ohio R. Co. v. State, 107 Md. 642, 69 A. 439, 73 A. 340. In the instant case the fourth count charges a continuing offense from June 7, 1941 to July 11, 1941, and this occurrence on June 29th was, of course, within those dates. For these reasons the Trial Judge did not abuse his discretion in admitting the testimony, the subject of the first, third, and fourth exceptions.

The fifth, sixth, seventh, eighth, and ninth exceptions were taken to the admission in evidence of the tools, the paper containing the record of the Traffic Court violations of the defendant Bevans, and other articles found in the automobile and to the refusal of the Trial Court to strike from the evidence the aforesaid articles found in the car and all allusions to them. Appellants contend that the arrest in this case was illegal and that this evidence procured as a result of a search incident to such an arrest is inadmissible. The only articles found on the defendants, according to the record, were the fountain pen searchlight and the registration card of the automobile, neither of which were offered in evidence. It is, therefore, unnecessary for us to pass upon the legality of this arrest. As to the articles found in the automobile registered in the name of Dorothy Roberts, at the time the registration card was found on the person of Leon Heller, he said that he had found the card and was going to turn it over to the police and both he and Bevans denied all knowledge of the automobile and the contents thereof. In discussing Code Article 35, Section 5, commonly known as...