Cornish v. State, 68

• Decision Date: 16 December 1957
• Docket Number: No. 68,68
• Citation: 215 Md. 64,137 A.2d 170
• Parties: Charles CORNISH v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 64

215 Md. 64

137 A.2d 170

Charles CORNISH v. STATE of Maryland.

No. 68.

Court of Appeals of Maryland.

Dec. 16, 1957.

Irvin S. Friedman, Baltimore (Fred Oken, Baltimore, on the brief), for appellant.

Clayton A. Dietrich, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., Frank H. Newell, III, State's Atty. and Douglas G. Bottom, Asst. State's Atty. for Baltimore County, Townson, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HAMMOND, Judge.

Charles Cornish appeals from judgment and sentence that followed his conviction of the crime of possession of lottery slips. The Baltimore County police suspected that Cornish was engaging in lottery operations. By a happy coincidence (for them), they received an official teletype bulletin from the Department of Motor Vehicles, revealing that Cornish's driver's license had been revoked, as well as his date of birth, color and weight, and the make, year, color, and license tag number of an automobile registered in his wife's name. The police also came to know that Cornish usually wore the same hat and cost and that his wife's car was customarily driven by him. Armed with all this information, two detectives in plain clothes, Lt. Allender and Sgt. Bates, went down to Turner Station, hoping to intercept Cornish in the act of operating the car on a revoked license so that they could arrest him and, in the doing, perchance uncover evidence of lottery activity. Waiting in their police car, the officers saw Mrs. Cornish's automobile being driven by a man who fitted the description they had, and they followed. Cornish drove the car into an alley, preparatory to backing out so as to head in the opposite direction, and Lt. Allender alighted from the police car and approached him, exhibiting his police badge. Cornish stopped the car and opened the left front door. Lt. Allender asked him if he was Charles Cornish and when the reply was 'Yes', asked if he had an operator's license. Cornish took the car key from the ignition and with it opened the glove compartment which was in the center of the dashboard. As he did so, Lt. Allender and Sgt. Bates (who by this time had parked the police car and joined his confrere) looked at the compartment to be sure, they said, that Cornish did not take a gun or other weapon from it, and their wary vigilance was rewarded by the sight of numbers slips and money in the compartment. Cornish took a driver's license from the compartment and showed it to Lt. Allender, who thereupon remarked that the license had been revoked. Cornish promptly replied: 'That's right * * *.' Both of the detectives said that only then was Cornish arrested and the slips and the money seized. The only testimony was that of the two officers. Cornish did not take the stand.

He asks us to find that his arrest was unlawful and, therefore, that the evidence seized as a result was inadmissible and complains that the testimony of the arresting officers as to the information sent them by the Department of Motor Vehicles should not have been received in evidence. The trial court felt that Code, 1951, Art. 66 1/2 Sec. 96, providing that the operator of a motor vehicle shall carry his license whenever he drives and that the license 'shall be subject to examination upon demand by an uniformed officer of the law', was applicable and held that the arrest for driving under a revoked license and the possession of lottery slips was lawful on the authority of Bradley v. State, 202 Md. 393, 398, 96 A.2d 491. There it was held proper for a policeman in uniform, who had stopped a motorist and demanded to see his license, to make an arrest upon seeing lottery slips in his possession. We think it unnecessary to turn the decision on these grounds. The statute relied on in the Bradley case in terms specifies that the policeman be in uniform (for reasons that seem apparent), and the officers in the case before us were not. We think that the record before us makes it plain that there was no arrest until after the policemen had been appellant driving, saw that his license was invalid, heard him admit it had been revoked, and saw the lottery slips in his possession. The arrest, therefore, was for misdemeanors committed in the officers' presence, and valid. Griffin v. State, 200 Md. 569, 92 A.2d 743; Blager v. State, 162 Md. 664, 161 A. 1.

In Baltimore & O. R. Co. v. Cain, 81 Md. 87, 31 A. 801, 28 L.R.A. 688 and Baltimore & Ohio R. Co. v. Strube, 111 Md. 119, 127, 73 A. 697, this Court has built a working definition of an arrest--the detention of a known or suspected offender for the purpose of prosecuting him for a crime. It has been said that there is detention only when there is a touching by the arrestor, although some cases have found a detention where there was no touching but the offender, upon being told that he was under arrest, submitted. Certainly, where there is no touching the intention and understanding of the parties are decisive for, if there is to be an arrest in such case, there must be an intent on the part of one to arrest the other and an intent on the part of such other to submit. See 'The Law of Arrest in Maryland', Kauffman, 5 Maryland L.Rev. 125, 132, et seq.; 4 Am.Jur., Arrest, Sec. 2 at 5, 6. Appellant does not contend and nothing in the record indicates that the detectives touched Cornish...