Frankel v. State

• Decision Date: 01 November 1940
• Docket Number: 27,28.
• Citation: 16 A.2d 93,178 Md. 553
• Parties: FRANKEL v. STATE. FRIEDMAN v. SAME.
• Court: Maryland Court of Appeals

16 A.2d 93

178 Md. 553

FRANKEL v. STATE.

FRIEDMAN v. SAME.

Nos. 27, 28.

Court of Appeals of Maryland

November 1, 1940

Appeals from Criminal Court of Baltimore City; Edwin T. Dickerson Judge.

Hymie Frankel and Nathan Friedman were convicted on a count of an indictment charging them with having unlawfully established kept, and occupied at Baltimore City a certain house building, grounds, and place, and a portion of a certain house, for the purpose of betting, wagering, and gambling in divers manners and by divers means, contrary to the form of the act of Assembly, and they appeal.

Affirmed.

Sol C. Berenholtz and Maurice J. Pressman, both of Baltimore, for appellant in both cases.

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

Argued together before BOND, C.J., and PARKE, SLOAN, MITCHELL, JOHNSON, and DELAPLAINE, JJ.

JOHNSON Judge.

These appeals from judgments of the Criminal Court of Baltimore City are contained in one record, and each appeal presents substantially similar questions.

Appellants and others were indicted for having unlawfully (a) bet on the result of horse races; (b) sold books and pools on horse races; (c) occupied certain premises for betting and gambling, and (d) rented and kept certain premises for the purpose of gambling. The indictment contains fifteen counts, each setting forth some specific violation of the statutory provisions contained in Code, Article 27, Sections 288-307, inclusive, relating to gaming. All traversers pleaded not guilty and the issues thus raised were tried before a jury, who found each of them guilty as to the fourth count and not guilty as to the remaining counts. The fourth count charged them with having unlawfully established, kept and occupied at Baltimore City 'a certain house, building, grounds and place and a portion of a certain house' for the purpose of 'betting, wagering and gambling in divers manners and by divers means' contrary to the form of the Act of Assembly.

Motions for new trials having been filed by all of them and overruled by the Supreme Bench of Baltimore City, a judgment was entered against each traverser, from which two of them prosecute the present appeals.

Prior to the return of the indictment, Sgt. Ralph Amrein, under the provisions of Code, Article 27, Section 306 , made under oath before Honorable Edwin T. Dickerson, one of the Judges of the Supreme Bench, an application for a warrant to search 110 Jackson Place, allegedly conducted as a private dwelling and seize 'all race horse paraphernalia and other evidence found therein, including rundown sheets, betting slips, telephones * * * pads, crayons and racing forms' used in the operation of gambling upon horse races. It was therein represented that the Sgt. had probable cause to believe a misdemeanor was being committed and the law with reference to maintaining bookmaking establishments was being violated upon the premises mentioned. As a basis for the belief of probable cause that the premises were being so used, the affidavit forming the application for the warrant stated that on January 30, 1940, two named police officers under direction of the affiant watched the premises between the hours of 1:25 P.M. and 3:41 P.M.; that within the above period they observed twenty-one separate occasions, upon each of which from one to four men at different intervals entered the premises through the backyard and were admitted, while at other times some attempted to enter, but were refused admittance, and at other times certain numbers of persons left the premises; that on the afternoon of the following day between 1:20 P.M. and 4:00 P.M. twenty-seven men at various times singly or in pairs entered the premises and were admitted, while three left together; that on both afternoons those who entered were admitted by someone inside who opened the door from within after a given signal had first been made by rapping on the door or outside shutter.

Upon that application Judge Dickerson, under the authority of the statute, issued a search and seizure warrant directed to Sgt. Amrein. That warrant contained the material matters mentioned in the application and concluded by commanding Sgt. Amrein to enter the premises known as 110 Jackson Place, search for all bookmaking articles and paraphernalia as were mentioned in the application and bring the same, also the occupants of the premises to the issuing judge or to some police justice of Baltimore City to be dealt with according to law.

The denial at the trial of appellants' motions, (a) for the return of articles seized under the warrant, and (b) to quash the warrant, occasioned the first two exceptions, while the third ws taken to the Court's action in permitting the introduction by Sgt. Amrein at the beginning of the trial of the application and the search warrant.

These exceptions may be considered together, since the principal contention with reference to them is (1) that no probable cause is shown in the application for the warrant, (2) that this being true the warrant which was issued upon that application is invalid, (3) that therefore their introduction in evidence to justify the officer's presence upon the premises was improper. If the first of these premises be true, the other contentions would logically follow, so that the important question to be considered at the outset is whether the application did in fact disclose probable cause for the judgment of a rationally minded man that the law was being violated at 110 Jackson Place by making and selling books upon horse races or some other allied form of gaming defined by the statute referred to.

Probable cause under the statute has so recently been considered by this Court in Goodman v. State, Md., 11 A.2d 635, and Allen v. State, Md., 13 A.2d 352, as to render unnecessary a prolonged discussion of the law, and upon the authority of those cases, it may be stated that if the observation of the premises by the officers as disclosed by the application was sufficient to justify the belief in a rationally minded person tht the law was there being violated, the existence of probable cause as contemplated by the statute is gratified. In the present case the affidavit shows that the premises were used as a residence and many persons on two succeeding afternoons were admitted, either singly or in pairs, at different intervals averaging five minutes apart, but no admittance was made until a certain signal had been given and the party seeking admittance had been approved by someone inside, for in some cases persons seeking to enter were turned away. It is true that no watchers were observed on the outside as in Goodman v. State, supra, but when it is considered that someone was on the inside who must approve all who were admitted, the case for probable cause is strengthened quite as much as if watchers had appeared outside the premises. The further fact that it is common knowledge that persons in entering private homes are not subjected to such scrutiny as they were compelled to undergo in the present case in order to gain admittance and that such numbers of them entered on the afternoons mentioned singly or doubly at different intervals are circumstances sufficient to cause a belief on the part of an officer in the exercise of an honest judgment that an offence was being committed within. We have referred to 110 Jackson Place as a dwelling, and it is so described in the application for the search warrant. It was suggested in appellants' argument that the premises were used as a democratic club, rather than as a residence. It is only sufficient to state that it appeared as a residence to the officers making the affidavit and the record is devoid of any evidence that a democratic club was conducted there. It is claimed that such an inference arises because of the presence in one of the desk drawers of an old certificate from the State Tax Commission showing the incorporation of a democratic club, but there is no evidence that the premises were ever used by the club in any manner. We conclude, therefore, that the application for the search warrant sufficiently showed probable cause, and that the warrant issued in pursuance thereof was valid, and this being true, their production by the witness before the trial Court was proper, since this was essential to enable the Court to determine at the outset that Sgt. Amrein and his fellow officers were rightfully upon the premises. Until this question had been resolved affirmatively they could not testify as to the observations they had made, nor what they found upon the premises. The introduction of the application and the search warrant were for no other purpose and served none other than to enable the trial Court to see that the officers had a right to be upon the premises in the execution of a valid search warrant. No error is therefore found in the trial Court's rulings to which the first, second and third exceptions relate.

The fourth exception was reserved to the action of the trial Court in permitting Sgt. Amrein to testify as to what was found in the basement of the adjoining premises No. 112 Jackson Place. The officer had previously testified that on the afternoon of February 1, armed with the search warrant he and three fellow officers arrived at 110 Jackson Place; that he and Officer Gilmore went to the rear of the premises while the other two officers went to the front. After the witness and his companion had entered the yard and were near the rear of the house, they knocked on the door and upon one of...