Chernock v. State

• Decision Date: 06 November 1953
• Docket Number: No. 9,9
• Citation: 99 A.2d 748,203 Md. 147
• Parties: CHERNOCK v. STATE.
• Court: Maryland Court of Appeals

Page 147

203 Md. 147

99 A.2d 748

CHERNOCK v. STATE.

No. 9.

Court of Appeals of Maryland.

Nov. 6, 1953.

Alan H. Murrell, Baltimore, for appellant.

Ambrose T. Hartman, Asst. Atty. Gen. (Edw. D. E. Rollins, Atty. Gen., Anselm Sodaro, State's Atty. and Theodore C. Waters, Jr., Asst. State's Atty., Baltimore, on the brief), for appellee.

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

COLLINS, Judge.

This is an appeal by Morris Chernock, appellant, from a judgment and sentence, in a trial before the trial judge and a jury, entered upon a verdict of guilty on two counts of an indictment charging him with keeping a room for the sale of lottery tickets, and with the possession of lottery paraphernalia.

Before pleading to the indictment, appellant filed a motion to strike the entire petty jury panel assigned to the Criminal Courts of Baltimore City for the reason that the twenty-five jurors, constituting the jury panel, had been rendered 'not impartial' because of their daily attendance as spectators in Criminal Court, Part One, while not actually serving on a jury trial. This contention is based primarily on Rule 1. K. of the Rules of the Supreme Bench of Baltimore City which provides that, while not in actual service in any of the common law courts, 'except in the case of jurors drawn for service in the criminal courts', the jurors shall assemble in a central place in the Court House provided for that purpose, and shall remain there for future assignments. It is evident by the plain wording thereof that jurors drawn for service in the criminal courts are excepted from this rule. The appellant contends that by allowing the jurors in criminal cases to hear other criminal cases as spectators, the impartiality of said jurors is likely to be destroyed. Appellant cites as authority for this contention, Article 21, of the Declaration of Rights, Constitution of Maryland, which provides in part: 'That in all criminal prosecutions, every man hath a right * * * to a speedy trial by an impartial jury * * *.' The appellant did not exercise his privilege to examine prospective jurors on their voir dire which, of course, he had the right to do. Whittemore v. State, 151 Md. 309, 314-315, 134 A. 322; Alexander v. R. D. Grier & Sons Co., 181 Md. 415, 419, 30 A.2d 757; Baltimore Radio Show, Inc. v. State, 193 Md. 300, 330, 67 A.2d 497. The purpose of such examination is to determine possible cause for disqualification of jurors by reason of bias, prejudice, or otherwise. Cohen v. State, 173 Md. 216, 224, 195 A. 532, 196 A. 819. In the absence of a showing by examination on voir dire that they were so prejudiced, we see no reason why jurors would be prejudiced by hearing other criminal cases. We have been unable to find any authority to support appellant's contention. In fact, the authorities seem to be otherwise. King v. Dale, 1 Scam. 513, 2 Ill. 513; State v. Philpot, 97 Iowa 365, 66 N.W. 730; Sandlin v. State, 19 Ala.App. 583, 99 So. 784; Ford v. State, 164 Ga. 638, 139 S.E. 355; Noe v. State, 4 How. 330, 5 Miss. 330; Quinlan v. State, 13 Ga.App. 669, 79 S.E. 768; Wesley v. State, 61 Ala. 282; Commonwealth v. Wasson, 42 Pa.Super. 38; Fletcher v. Commonwealth, 106 Va. 840, 56 S.E. 149; Haussener v. United States, 8 Cir., 4 F.2d 884, 886; Ramos v. United States, 1 Cir., 12 F.2d 761, 762; Camp v. United States, 8 Cir., 297 F. 452.

The appellant further contends that the affidavit and application for the search warrant in this case does not show probable cause for the issuance of a warrant to search the premises at 3926 Green Spring Avenue. For the purposes of this case, this affidavit and application recites in effect that the affiant, Lieutenant Joseph J. Byrne, of the Baltimore City Police Department, had received a complaint that the appellant, Morris Chernock, was picking up lottery numbers at a tavern at the intersection of Preston and Gay Streets in Baltimore and taking them to 3926 Green Spring Avenue. On June 6, 1952, two officers watched the said tavern. At about 11:30 a. m. they saw the appellant leave the tavern and enter an automobile, bearing Maryland license No. 231-833, listed to Pauline's Specialty Shop, 536 North Gay Street, and hereinafter referred to as appellant's automobile. Appellant drove in a circuitous route to the house at 3926 Green Spring Avenue. He then took from the glove compartment of his automobile a small brown package which he carried into that house. On June 10, 1952, two officers went to the same tavern. At about 11:30 a. m. they saw the appellant enter his automobile. At that time a colored man called to appellant, approached his automobile and produced from his pocket a bundle of conventional lottery slips and handed them to the appellant and later he talked with the appellant who was looking through the lottery slips. The officers followed the appellant's automobile to the house at 3926 Green Spring Avenue. The appellant got out of his automobile and, after acting suspiciously by looking in all directions, hurriedly entered that house carrying a large brown paper bag, partially filled with some unknown contents. On June 11, 1952, at about 11:35 a. m., the appellant was seen to leave the same tavern, drive to the house at 3926 Green Spring Avenue, where he blew his automobile horn. A white woman came out of this house and appellant handed her a brown package which she accepted and she returned to the house. On June 12, 1952, at about 11:40 a. m., the appellant left the same tavern, entered his automobile, drove in a circuitous route to the house at 3926 Green Spring Avenue, got out of his automobile carrying a package and entered that house. He remained there a few minutes, came out without the package, re-entered his automobile, and drove to the 6300 block of Green Spring Avenue where he parked and waited for about fifteen minutes. An Oldsmobile sedan slowed down and stopped opposite appellant's automobile and then both automobiles drove off at a high rate of speed into Baltimore County. On June 18, 1952, the officers went to the vicinity of the 6300 block of Green Spring Avenue where the two before mentioned automobiles had been seen on June 12th. At about 1:10 p. m. they observed the same Oldsmobile sedan, operated by a man known as Edward Helziner, alias Boston Blackie, cruising in the neighborhood, the driver apparently looking for some one. At about 1:20 p. m. they saw the appellant, operating his automobile, park at the end of the 6300 block of Green Spring Avenue. Helziner walked south on Green Spring Avenue and entered appellant's automobile. Appellant then drove about half a block and parked under a large tree where the two men sat on the front seat. The officers, by looking through binoculars, saw the two men studying conventional lottery slips. The men remained there about five minutes and then drove out of slight. The officers later saw the appellant driving south on Green Spring Avenue. In a few minutes they noticed his automobile being followed by Helziner. The two officers then found appellant's automobile parked in front of 3926 Green Spring Avenue. On July 8, 1952, the officers saw appellant's automobile parked near the above mentioned tavern. At 11:30 a. m. the appellant came out of the tavern, entered his automobile and drove west on Preston Street and south on Central Avenue to the 900 block where he parked at the curb. He remained seated in his automobile for approximately five minutes, apparently studying something held in his hand. In about eight minutes Helziner entered appellant's automobile. They engaged in conversation and in about three minutes Helziner got out of appellant's automobile and walked away. The appellant remained in his automobile and drove to 3926 Green Spring Avenue and entered the house. The application further alleged: 'The lottery carried on and known as 'numbers' requires that the play or slips be collected by certain people designated as runners and writers and then returned to the person or corporation conducting the game; and it is the belief of the affiant that the persons named, described and referred to herein are runners or writers and are actively engaged in the business of conducting a lottery.' The warrant authorized the search of the automobile bearing Maryland license 231-833 and of the premises at 3926 Green Spring Avenue.

In Fleming v. State, Md., 92 A.2d 747, 749, a case very similar to the one before us here, the affidavit for the search warrant stated that the police officers had received a complaint that one Robert E. Stanton was engaged in lottery numbers. On numerous occasions this man was seen, while acting suspiciously, enter a building at 1135 North Monroe Street, Baltimore, carrying a brown paper bag partially filled with unknown contents. On another occasion they saw the same person receive from another man 'some yellow looking slips' similar to those used in the operation of a lottery and return to the same premises. When he left those premises he had no bag. This Court, in holding that the allegations in the affidavit constituted probable cause for belief that lottery operations were being carried on at 1135 North Monroe Street, justifying the issuing of the search warrant, stated: 'In the case of Bratburd v. State, 193 Md. 352, at page 356, 66 A.2d 792, at page 794 it was said: 'In support of his contention that there was no probable cause shown for the issuance of the search warrant, defendant relies on Wood v. State, 185 Md. 280, 44 A.2d 859. In that case we said: 'Probable cause is more than suspicion or possibility but less than certainty or proof. On the facts this case is near the border. The question of probable cause must be determined by the judge, not by the applicant for the search warrant. * * * But in making this determination, the experience and special knowledge of the police officers who are applicants are among the facts which may be considered.' 185 Md....