Goodman v. State

• Decision Date: 05 March 1940
• Docket Number: 38,39.
• Parties: GOODMAN et al. v. STATE. GOODMAN v. SAME.
• Court: Maryland Court of Appeals

11 A.2d 635

178 Md. 1

GOODMAN et al. v. STATE.

GOODMAN v. SAME.

Nos. 38, 39.

Court of Appeals of Maryland

March 5, 1940

Appeals from Criminal Court of Baltimore City; Eugene O'Dunne Judge.

Sol Goodman and another an Lottie Goodman were convicted of operating establishment for taking bets on horse races, and they appeal in the same record.

Affirmed.

Robert R. Carman and David J. Markoff, both of Baltimore, for appellants.

Robert E. Clapp, Jr., Asst. Atty. Gen., and Stewart Lee Smith, Asst State's Atty., of Baltimore (William C. Walsh, Atty Gen., and J. Bernard Wells, State's Atty., of Baltimore, on the brief), for appellee.

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

SLOAN Judge.

Sol Goodman was indicted on charges of betting, wagering, and gambling unlawfully on the result of a trotting, pacing, and running race; of unlawfully selling racing books and pools; establishing, keeping and occupying a certain house, building, etc., for the purpose of unlawfully betting and taking bets on races. The indictment contains fifteen counts charging practically the same offense in a variety of forms and charges. There was no question of the validity of the indictment, so that there is no need to enter into its details. The verdict was guilty, and from the judgment thereon, the defendant appeals.

A similar indictment was returned against Lottie Goodman, wife of Sol Goodman, with the same result. Both appeals are in the same record, and argued as one case.

At the trials of both defendants it was stipulated that 'the only questions to be raised are those concerning the validity of the search and seizure made thereunder.'

Preceding tha arrest of the defendant and the raid of the premises by the police officers, Sergeant Ralph M. Amrein, in accordance with the provisions of the Act of 1939, ch. 749, Code, Art. 27, § 259A, applied to Judge Emory H. Niles for a search warrant to enter the premises, No. 1230 W. North Avenue in Baltimore City and search for and seize certain racing paraphernalia described in his affidavit, and thereupon a search warrant was issued by Judge Niles.

The affidavit which was the basis of Judge Niles' action was as follows:

'State of Maryland, City of Baltimore,

'I, Sergeant Ralph Amrein, this day of July 29th, 1939, made oath in due form of law, that I have observed premises 1230 W. North Avenue, a confectionery store, and second and third floors, same being occupied by, Julie Markoff, and Sol Goodman, and inspecting the front and rear of said premises, I have reasonable and probable cause to believe that a misdemeanor or a felony is being committed on said premises, and that the same are used for what is known as a (Bull Pen) where bets are accepted on horse races.

'On July 26th, 1939 (Officer Joseph Burke) observed the front of these premises, and during the hours of 1:00 P. M. and 2:05 P. M. the officer noticed fifty-one (51) persons enter the store. I have observed these premises both from the outside, and from the inside of this store, when I would rush into the store there usually would be two (2) watchmen standing in front of the store, they would run into the store and notify the clerk that I was coming. Officer Allen Clark, has stood in the store in the past week, and seen people come in and they would ask the clerk whether or not they could go upstairs. Behind the counter there is a button which rings a buzzer on the second or third floor. I have seen this procedure repeated on a number of occasions, and I have reasons to believe that the two (2) men who station themselves in front of the store are watchers for the book-making establishment.

'Affiant is a Sergeant of Police in the Police Department of Baltimore City, and has reasonable grounds for the belief that book-making is being carried on in said premises.

'Whereupon under Chapter 749, of the Acts of the General Assembly of Maryland 1939 he hereby makes application for a search and seizure warrant, authorizing him to enter the said premises and search and seize, and take into custody, run-down sheets, racing slips, telephones, earphones, black-board teleflash, and anything pertaining to the evidence of race horse parapharnalia which is used in the operation of gambling on races, etc. that may be found on said premises.'

The warrant issued in pursuance of the affidavit was as follows:

'Search Warrant

'City of Baltimore, Sct:

'The State of Maryland to Sergeant Ralph Amrien of the City of Baltimore, Greeting:

'Whereas it appears to me, the subscriber, an Associate Judge of the Supreme Bench of Baltimore City, in and for the City aforesaid, by the written information and oath of Seargent Ralph Amrein, of the City aforesaid, that said affiant has reasonable cause to believe, and does believe, that the law in relation to betting on horse races Section 247, Article 27, is being violated in premises known as 1230 W. North Avenue, Baltimore, Maryland, used, kept, rented or occupied by one Julie Markoff and Sol Goodman and that affiant has probable cause to suspect that books, slips, telephones and other material having to do with betting on horse races prohibited by Section 247, Article 27, are concealed in said premises known as 1230 W. North Avenue, in said City. You are, therefore, hereby commanded, with necessary and proper assistance, to enter, in the day time, into the said premises used, kept, rented or occupied by the said Julie Markoff and Sol Goodman, in the City aforesaid and there diligently to search for books, slips and parapharnalia of the above description so found and also the body of the said Julie Markoff, and Sol Goodman, to me, the subscriber, or some Police Justice of the said State, in and for the City aforesaid, to be disposed of and dealt with according to law.

'Hereof fail not at your peril, and have you then and there this warrant. 'Given under my hand and seal this 28th day of July, in the year of our Lord one thousand nine hundred and thirty-nine.

'(Signed) Emory H. Niles,

'Associate Judge of the Supreme Bench'

An indictment followed and thereupon Sol Goodman filed a petition alleging that the search warrant was void because

'(A) The affidavit and sworn statement of one Sergeant Ralph Amrein, upon which the said search warrant was issued, contains no statements forming a sufficient basis for the issuance of said search warrant, and that there are no facts stated in said affidavit or in said sworn statement which show any probable cause for issuance of said warrant.

'(b) That said search warrant is void in that it does not allege or recite that the Judge of the Supreme Bench issuing the same, found that there was probable cause for issuance of said search warrant.

'(c) That said search warrant is void because it appears upon the face of the warrant, that although the premises to be searched and the name of the applicant are set forth therein, the grounds for such search and seizure are not set forth with the particularity as is required by statute.

'(d) And for such other and further reasons as may be shown upon a hearing of the petition.' and prayed that the search warrant be quashed, and all papers, books, etc., seized by the officers be returned to him.

A preliminary hearing was had on the motion to quash, before Judge O'Dunne, and the motion overruled. At this hearing the search warrant was offered in evidence, and with it a carbon copy of the affidavit, which was signed by 'Sergeant Ralph Amrein,' but the jurat to which was blank. Sergeant Amrien testified that when he served the warrant, 'That affidavit accompanied the search warrant when I presented it to Sitnick (a clerk in the store).

'Q. When you presented it to whom? A. Milton Sitnick, and also to Mr. Goodman upstairs. In fact I read it to him and he read it too.'

It was agreed 'that the affidavit was not pinned to or otherwise physically attached to the warrant when the latter was served.'

The appellant vigorously argued that the affidavit offered in evidence was objectionable, because the jurat was not signed by a judge or magistrate. This contention must be ignored because, according to the record, it was not objected to, was not raised below, and cannot, therefore, be considered on appeal. Code, Art. 5, § 10.

The defendant argues that the search warrant should contain the grounds for search, and that it does not meet the requirements of the Act of 1939 unless the affidavit is physically attached to the warrant as part of it. The act requires that the 'search warrant shall name or describe with reasonable particularity, the individual, building, apartment, premise, place or thing to be searched, the grounds for such search and the name of the applicant on whose written application as aforesaid the warrant was issued.' The 'grounds for such search' were not set forth in the warrant itself, and it was stipulated that the officer's affidavit was not physically attached to the warrant. As already said...