Frantom v. State

• Decision Date: 14 April 1950
• Docket Number: 143.
• Citation: 72 A.2d 744,195 Md. 163
• Parties: FRANTOM et al. v. STATE.
• Court: Maryland Court of Appeals

72 A.2d 744

195 Md. 163

FRANTOM et al. v. STATE.

No. 143.

Court of Appeals of Maryland.

April 14, 1950

Joseph W. Scholz, Annapolis, for appellants.

Kenneth C Proctor, Asst. Atty. Gen., (Hall Hammond, Atty. Gen., and James C. Morton, Jr., State's Atty., Anne Arundel County Annapolis, on the brief), for appellee.

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

COLLINS, Judge.

This is an appeal by William Frantom and James Hutton, appellants, from convictions in four separate cases of violations of the statutes against Lotteries, Article 27, Sections 409, 410 and 411, 1939 Code.

Article 35 Section 5, 1939 Code, commonly known as the Bouse Act, makes evidence inadmissible in the trial of a misdemeanor procured by any illegal search or seizure or any search and seizure prohibited by the Declaration of Rights of this State. By Article 27, Section 306, 1939 Code, authorization is given to any judge of the Supreme Bench of Baltimore City or to any judge of any of the Circuit Courts in the Counties, or to any Justice of the Peace in this State, to issue search warrants upon a showing of probable cause, by sworn application in writing that a misdemeanor or felony is being committed in the premises sought to be searched. The basis of the probable cause is to be set forth in writing in the application. If 'there is no probable cause for believing the existence of the grounds on which the warrant was issued said judge must cause it to be restored to the person from whom it was taken.' It is stipulated in these cases now before this Court that a motion was made to quash the search warrant and to suppress and return all evidence secured thereby on the grounds that the application did not show probable cause. The appellants also objected to the instructions in evidence of the articles secured by the search warrant and to the testimony of each witness for the State.

The affidavit and application made by George W. Rawlings, Chief of Police of Annapolis, for the search warrant, alleges that there is probable cause to believe that a misdemeanor is being committed in that the law in relation to lotteries and gambling is being violated in the premises known as 10 Market Space owned by William Frantom, operated and used as a pool room, with apartments on the second floor, licensed to James Hutton 'and your affiant believes founded upon long experience with such violations that a Lottery and Gambling is being conducted on such premises. * * * On September 17, 1949, Officer J. W. Moreland while on Patrol, did see several known gamblers, enter this establishment, those known to Officer Moreland, are William E. Frantom, Oliver Clark, 'Reds' Lewis, also noticed several colored men enter and leave the building, between the hours 12:30 P.M. and 1:30 P.M. On September 19-20-21, 1949, on these days the activities were checked by the affiant and Officer Moreland, and the above activities were still in evidence.' The search warrant issued the next day by the judge recites that it appears to him from the application of Chief George W. Rawlings that there is probable cause to believe that a misdemeanor 'to wit: Gambling, Lottery, Bookmaking, Lottery on Horse Racing results' is being committed at the premises described in the application (reciting the facts set forth in the application) and authorized the search of the premises described in the application.

The appellants contend that the facts set forth in this application for the search warrant and in the search warrant itself did not show probable cause for believing that a lottery and gambling were being conducted in the premises described therein. Probable cause in search warrant cases has been discussed many times by this Court. It has been frequently pointed out that if the facts and circumstances are such as to warrant a man of prudence and caution in believing that the offense has been committed, that is sufficient. The requirement is less than certainty or proof, but more than suspicion or possibility. Goodman v. State, 178 Md. 1, 9, 10, 11 A.2d 635; Riley v. State, 179 Md. 304, 312, 18 A.2d 583; Wood v. State, 185 Md. 280, 285, 44 A.2d 859; Smith et al. v. State, Md., 62 A.2d 287, 291, 5 A.L.R.2d 386, and cases there cited.

In the case of Wood v. State, 185 Md. 280, 44 A.2d 859, 862, supra the affidavit filed for the purpose...