Carpenter v. State, 154

• Decision Date: 04 April 1952
• Docket Number: No. 154,154
• Citation: 88 A.2d 180,200 Md. 31
• Parties: CARPENTER v. STATE.
• Court: Maryland Court of Appeals

Page 31

200 Md. 31

88 A.2d 180

CARPENTER v. STATE.

No. 154.

Court of Appeals of Maryland.

April 4, 1952.

D. K. McLaughlin, Hagerstown (Francis H. Urner, Hagerstown, on the brief), for appellant.

Kenneth C. Proctor, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., and John S. Hollyday, State's Atty. Washington Co., Hagerstown, on the brief), for appellee.

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

HENDERSON, Judge.

Carpenter was convicted of bookmaking by Judge Mish, sitting without a jury, in the Circuit Court for Washington County, and sentenced to serve nine months in jail and pay a fine of $1,000. The appeal attacks the search warrant under which evidence against him was obtained on two grounds, that it was fatally defective in form, and not issued upon a showing of probable cause.

The alleged defect in the warrant was that it erroneously referred to the statute creating the crime of bookmaking as Chapter 81, Acts of 1950 instead of Section 291, Article 27 of the Code. Chapter 81 repealed and reenacted Section 306, Article 27 of the Code, as amended by Chapter 9, Acts of 1949, Special Session, relating to the issuance of search warrants. But the reference was clearly surplusage. There is nothing in the statute relating to search warrants that requires the warrant to refer to the applicable statute but only to show that there is probable cause to believe that 'any misdemeanor or felony is being committed'. The misdemeanor was described in the warrant as a violation of 'the law prohibiting the betting, wagering or gambling on the results of trotting, pacing and running races of horses * * * and that a book or pool is being made on the results of trotting, pacing and running races of horses' in the described premises. The description of the crime was in the language of section 291. Even in the case of an indictment, it is elementary that an offense is sufficiently alleged if made substantially in the language of the statute. Miggins v. State, 170 Md. 454, 184 A. 911. It has been held that a misrecital in a reference to the statute may be rejected as surplusage. Rawlings v. State, 2 Md. 201, 213.

On the point of probable cause, Officer Diggins swore that he watched the premises, a one and one-half story dwelling house belonging to the appellant, on two successive days. On the first day he heard the appellant and two other men discussing racing on the sidewalk, with racing forms in their hands. They went into the house and remained there. During a period of an hour and three-quarters he saw eight men and one woman enter the premises, and come out within periods of five minutes. Each looked around in a careful...