Heyward v. State
| Decision Date | 03 February 1932 |
| Docket Number | 51. |
| Citation | 158 A. 897,161 Md. 685 |
| Parties | HEYWARD v. STATE. |
| Court | Maryland Court of Appeals |
Rehearing Denied March 4, 1932.
Appeal from Criminal Court of Baltimore City; Eugene O'Dunne Judge.
Julius Heyward was convicted of unlawfully possessing lottery tickets, books, lists, slips, and records, and he appeals.
Affirmed.
Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT PARKE, and SLOAN, JJ.
Abram C. Joseph, of Baltimore (Daniel C. Joseph, of Baltimore, on the brief), for appellant.
G. C A. Anderson, Asst. Atty. Gen. (Wm. Preston Lane, Jr., Atty. Gen., and Herbert R. O'Conor, State's Atty., for Baltimore City, and Wm. H. Maynard, Asst. State's Atty., both of Baltimore, on the brief), for the State.
Julius Heyward, the appellant, with one Henry Gorman, was indicted by the grand jury of the city of Baltimore for violation of certain provisions of the criminal code pertaining to lottery, article 27, § 336 et seq., of the Code Public General Laws of Maryland. When the case came up for trial in the criminal court of that city, a severance was granted and separate trials were had in that court.
The indictment contained eleven counts, but in this case we are interested only in the fourth and fifth counts upon which the defendant Heyward was found guilty by a jury. In the fourth count he was charged with having in his possession lottery tickets not for the purpose of procuring and furnishing evidence of the violation of any of the provisions of the law relating to lotteries; and in the fifth count with having in his possession "divers books, lists, slips and records of numbers drawn in a lottery; divers books, lists, slips and records of lottery tickets; divers books, lists, slips and records of money which had been received, and which was to have been received from the sale of lottery tickets, and things in the nature thereof; and divers things by which it was promised and guaranteed that particular numbers, character, tickets and certificates would, in a certain event, and upon the happening of a certain contingency in the nature of a lottery, entitle the purchaser or holder to receive money, property and evidence of debt; * * * at the time he so there had in his possession the said books, lists, slips and records of numbers drawn in a lottery, books, lists, slips and records of lottery tickets, books, lists, slips and records of money which had been received, and which was to have been received from the sale of lottery tickets, and things in the nature thereof, and things by which it was promised and guaranteed that particular numbers, characters, tickets and certificates would, in a certain event, and upon the happening of a certain contingency, in the nature of a lottery, entitle the purchaser or holder to receive money, property and evidence of debt, not having the same in his possession for the purpose of procuring and furnishing evidence of the violation of any of the provisions of the law relating to lotteries. * * *"
Upon the jury's verdict of guilty on the above counts, the defendant was sentenced by the court to pay a fine of $1,000, and be imprisoned for the term of sixty days in the city jail. It is from that judgment of the court that the appeal in this case was taken.
The state, in support of the charges brought against the defendant, placed upon the stand Sergeant Edward L. Hitzelberger, who testified that he was from the northwestern district, and that, as a result of certain complaints and information received by him, he, for several mornings prior to May 20, 1931, watched the movements of Heyward in respect to or in connection with 1716 Brunt street; and on May 20, 1931, about 11 in the morning, he went to 1716 Brunt street. "A man walked in the house and he walked in with him, behind him. Witness then walked to the back room and there were a man by the name of Gorman (Henry Gorman) and two others. In the meantime he had placed Officer Bradley at the rear and had told one of the men to go down and let Officer Bradley in the house, which he did. Witness told Bradley to stay at the front door, and they waited there for about a half an hour, knowing that he always visited this house in the morning. While they were waiting there, Heyward came there, and witness placed him under arrest and took him to the station house. Witness sent him to the station house in the patrol wagon and witness got permission from Heyward to drive his car to the station house. On driving the car down there he found a lot of lottery slips and books on the floor of the car, and when the turnkey searched Heyward at the station house he found slips on him, and envelopes with money in them, which he had collected from going around to the various pick-up stations. Witness was there when the turnkey was searching him.
"Thereupon the witness was shown some forty or fifty little envelopes with figures on the outside which he testified in some instances contained money."
The state then offered in evidence the papers which were found upon Heyward after his arrest at the station house. An objection to the admission of these papers in evidence was overruled. This ruling constitutes the first exception to the admission of evidence, though it appears in this record as the second exception. The first was to the action of the court in refusing to grant the prayer in defendant's petition filed and heard before the commencement of the trial of the case upon its merits, asking that the papers, slips, and books found in defendant's car, as well as the slips and papers found upon him after his arrest at the station house, then in the possession of the state, be returned to the defendant.
The witness then testified that he had been working on lottery cases of this character about eighteen months, and that within that time he had handled some six hundred cases.
He was then asked: "Will you please tell * * * just how a lottery is operated, based upon your experience?" An objection made to this question was overruled. The state, at the request of the defense, reframed its question, and the witness was asked: "Will you tell the gentlemen of the jury just how a lottery is operated based upon your experience in such things?" An objection to this question was likewise overruled, and to this ruling an exception was noted which appears in the record as the third exception. The witness then answered, saying: The court then asked: "Now, are they all alike?" And the answer was: At this point the court, interrupting the witness, said: Question: "Well, now, Sergeant, come on down to my question and tell me how a lottery is operated?" There was an objection to this question and the court replied: "I think I shall rule out that testimony." It will be seen that the witness in the third exception was permitted to answer the question as to how a lottery was operated, but thereafter the court struck out the answer involved in that exception. Consequently, the third exception is not before us.
The witness also testified that he had watched Heyward for two days; that Heyward was in and around 1716 Brunt street; he would leave his car parked at Laurens and Brunt street and then walk down Brunt street to the house about half a block and go in; Heyward did this about 11 o'clock each of the two days that he watched him. The witness, when asked, "What, if anything, did Heyward say when he was placed under arrest?" replied: "He asked me to pass him up and he would not come around there any more."
The books the witness found in the car were then offered in evidence, and, after an examination of them by the court, they were admitted. After the admission of these books, the court said: "I will grant you an exception of course, to the admissibility of these books, Mr. Joseph." Mr. Joseph said: "Yes, sir." And therefore the books referred to were handed to the jury to be examined. As shown by the record, this constituted the fifth exception.
The sixth exception was taken to the ruling of the court in permitting the witness to testify that books were used in running a lottery, and, when asked what sort of books, he said: "Triple sheets." And when asked to describe them more fully, he said: The court was asked to strike out the last answer, and upon refusal to do so the seventh exception was taken. On cross-examination, the witness testified that he had no warrant to enter and search the house or to arrest Heyward.
Officer Bradley, also of the northwestern district, testified that he was with Sergeant Hitzelberger on March 20th at 1716 Brunt street. He went to the rear and was let in the house by a colored man. ...
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