Brown v. State, 11

• Citation: 203 Md. 126,100 A.2d 7
• Decision Date: 05 November 1953
• Docket Number: No. 11,11
• Parties: BROWN v. STATE.
• Court: Court of Appeals of Maryland

Page 126

203 Md. 126

100 A.2d 7

BROWN v. STATE.

No. 11.

Court of Appeals of Maryland.

Nov. 5, 1953.

Louis Samuels, Baltimore (Samuel A. Culotta, Baltimore, on the brief), for appellant.

W. Giles Parker, Asst. Atty. Gen. (Edw. D. E. Rollins, Atty. Gen. and Anselm Sodaro, State's Atty., Baltimore City, Baltimore, on the brief), for appellee.

Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HENDERSON, Judge.

This appeal is from a judgment and sentence upon a conviction for possession of lottery paraphernalia. The errors alleged are in the remarks of the court in cautioning the jury prior to adjournment, and in the court's charge to the jury.

After testimony had been concluded, but before the arguments and charge, the court adjourned overnight, cautioning the jury against accepting telephone calls from strangers. The court said: 'Sometimes in the past we have had difficulty about people calling up jurors and attempting to talk to them about the case and I don't want this case caught in that complication.' This appears to be no more than the usual warning against discussing the case with outsiders. Cf. Beard v. United States, 65 App.D.C. 231, 82 F.2d 837. Moreover, there was no objection to the court's action. By failing to object, the attention of the court was not called to any possible implication derogatory to the accused or his counsel, which might well have been corrected. We need not consider the further point raised by the State that there was no motion to strike or for a mistrial, as held necessary in Marino v. State, 171 Md. 104, 109, 187 A. 858. See also Kirschgessner v. State, 174 Md. 195, 201, 198 A. 271; Cohen v. State, 179 Md. 696, 16 A.2d 878, and Lubinski v. State, 180 Md. 1, 9, 22 A.2d 455.

The testimony showed that the police, armed with a search warrant, were admitted to the appellant's appartment by his wife. They found a number of blank pads near the telephone, a slip of paper with lottery notations in the open pocket of an apron worn by Mrs. Brown, which she handed over (Exhibit 3), and another slip with lottery notations in the cupboard (Exhibit 4). According to Sergeant Klump, she told him she had found the slip (Exhibit 3) on the telephone table when she was cleaning up, and put it in her pocket. She said her husband had written it. The appellant was not present during the search but called on the telephone while the officers were there and agreed to come to the police station. At the station house he told Sergeant Klump that Exhibit 3 was in his handwriting and that he had left it in the apartment. He said his wife had nothing to do with it. At the trial, he testified that neither of the slips was his, he never saw them until he came to the police station, and denied that he told Sergeant Klump that one of them was in his own handwriting. He testified that his wife was recovering from a serious injury and he had admitted his guilt in the presence of Sergeant Klump and the Magistrate 'to keep my wife out of it.'

The appellant urges three points in connection with the court's charge. He contends that the court's statement that 'Brown said he made that statement and took that position in order to protect his wife' was inaccurate because Brown never admitted that he told Sergeant Klump that Exhibit 3 was his. The inaccuracy, if any, was purely verbal, for the effect of his admission of guilt, which he admitted making, was to admit the ownership and possession of...