Hitzelberger v. State

• Decision Date: 10 March 1938
• Docket Number: 45.
• Parties: HITZELBERGER v. STATE.
• Court: Maryland Court of Appeals

197 A. 605

174 Md. 152

HITZELBERGER v. STATE.

No. 45.

Court of Appeals of Maryland

March 10, 1938

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

Edward L. Hitzelberger was convicted for malfeasance in office, and he appeals.

Affirmed.

Milton H. Talkin, of Baltimore, for appellant.

Thomas N. Biddison, Asst. State's Atty., of Baltimore (Herbert R. O'Conor, Atty. Gen., Hilary W. Gans, Deputy Atty.

Gen., and William H. Maynard, Deputy State's Atty., of Baltimore, on the brief), for the State.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE SLOAN, MITCHELL, SHEHAN, and JOHNSON, JJ.

MITCHELL Judge.

Edward L. Hitzelberger, the appellant, was presented on August 6 1937, and thereafter indicted by the grand jury of Baltimore city for malfeasance in office. The indictment contains three counts, the first charging that, while a member of the police force of said city, the appellant permitted, connived at and allowed Shirley Kaminski and Carroll Goldstein to maintain and conduct a house of prostitution; the second, with having likewise permitted Florence Reed to maintain and conduct a house of prostitution, and the third, with having in like manner permitted Betty Byrd to maintain and conduct a similar place. He was convicted by a jury in the criminal court of said city, and sentenced to the Maryland penitentiary for the period of 1 year, and from that judgment this appeal is taken.

The record reveals that Hitzelberger for more than 26 years served in various capacities on the city police force, and filled the position of lieutenant at the time of the beginning of the investigation which culminated in his indictment. At that time, and in his capacity as lieutenant, he was assigned to the Northwest district of Baltimore city, in which territory the three alleged houses of prostitution were located. All three of the above houses were raided by investigators of the Department of Justice on May 15, 1937, and the operators or proprietors of each of them were arrested and charged with violations of the federal law. Upon the respective charges against them Carroll Goldstein, Shirley Kaminski, Florence Reed and Betty Byrd were each sentenced to serve terms of confinement in federal prisons, by the United States District Court for the District of Maryland.

At the trial of the instant case the State produced Carroll Goldstein, who testified that he had known the appellant for more than 20 years, and at the time of the above raid and for 2 1/2 years prior thereto, had lived at 301 W. Dolphin street, one of the disreputable houses in question, which was conducted by the Kaminski woman. That he formerly lived on Eutaw street, and that at his former home he arranged a meeting between the appellant and Shirley Kaminski, at which Hitzelberger approved of the plan of the woman to open the Dolphin street house for immoral purposes. This meeting took place about 2 1/2 years previous to the trial, and, according to the witness, marked the beginning of the acquaintanceship between the lieutenant and Shirley Kaminski. The testimony of Goldstein tends to prove that during the interval between the above meeting and the raid, the officer was a frequent visitor to the Dolphin street dive; that he was intimate with the proprietress and other inmates of the place; that he sought and received a small loan from the woman, and, generally, protected the place from being raided by the city authorities, through the method of furnishing Goldstein with advance information of complaints made to the police department against the Kaminski house, as and when these complaints were turned over to inferior officers of the force for investigation, and conveying to Goldstein the nature of the reports of the latter officers on the results of their investigations. The witness also testified to intimacies between the lieutenant and Florence Reed, who conducted the same type of place as did Shirley Kaminski; that after some difficulty between the officer and the Reed woman he arranged a conference between them, at which it was agreed that the latter could continue to operate a house of prostitution; and that later the Reed woman moved to a Bolton street address, where she engaged in the conduct of the same nefarious practice. To the same effect the witness interviewed the officer on behalf of Betty Byrd, and obtained his tacit approval that the latter conduct a similar place of resort on Linden avenue. The witness gave testimony tending to prove that Hitzelberger received from him, on behalf of Shirley Kaminski, the gift of some shirts on one occasion, and three bottles of wine during the Christmas period of 1936, and that, within the year preceding the trial, the witness gave the officer some 20-year-old cognac brandy. That Florence Reed gave the witness $15 to spend on a wedding present for, presumably, the lieutenant's daughter, which the lieutenant refused to accept, and which the witness kept on account of an indebtedness of $30 due him from the officer. According to this witness, he was the underworld contact man between the operators of the several houses of ill fame and the lieutenant in charge of the police district in which they were severally located. This testimony is somewhat corroborated by the subsequent testimony of the defendant himself, who admitted a long and intimate acquaintanceship with Goldstein and justified his close relationship for the reason that through such contact he obtained leads to the solution of various crimes. It is unnecessary to state that the officer denied categorically the gist of Goldstein's testimony, although he admitted that he visited the several places on various occasions, allegedly for the purpose of justifying suspicions which he entertained against the resorts, based on anonymous complaints to his department, which suspicions were not verified, in his opinion, to the extent of warranting arrests. Goldstein's narrative of the various contacts and transactions above set forth was corroborated, on the whole, by the testimony of the three women who conducted the houses, and by at least two other inmates of the places. It further appears from the record that all three of the houses of prostitution continued to operate from August 6, 1936, to May 15, 1937, the date of the federal raid.

Testimony was further adduced by the State, through the production of one of the federal agents who made the vice investigations which culminated in the raids of May 15, 1937, and the subsequent prosecution hereinbefore indicated, to the effect that in the course of the investigations he tapped the telephone wire connected with the Dolphin street house, over which he intercepted communications between Hitzelberger and Goldstein on one occasion, the Kaminski woman and Hitzelberger on two occasions, and between the lieutenant and another inmate of the Dolphin street house, which communications were reduced to writing at the respective times at which they were intercepted, and kept by the investigator in the form of two volumes, in which other apparently similar data was contained. It was testified by the investigator that on June 4th or 5th, 1937, he interviewed the appellant and read to him each of the above communications; and, according to his testimony, the intercepted call from Goldstein to the lieutenant, relating to the gift of brandy by the former to the latter, does not seem to have been admitted or denied on that occasion. The next call reveals the communication between the Kaminski woman and the officer with reference to an apparent money transaction between the parties, and to a proposed later visit by the lieutenant to the Kaminski house. That conversation the investigator stated was read to the lieutenant, who explained that the loan did not concern him personally, but that he, the officer, had sought the loan at the request of Goldstein, and promised to see that it was repaid to Shirley Kaminski in event Goldstein failed to return it. The third intercepted message appears to have been a call from Hitzelberger to Shirley Kaminski, in which he stated his inability to get to see her at that time, but inquired about some inmate of the house, and, upon invitation from Shirley, he stated he would call at the house later on. This conversation, according to the witness, was admitted by the lieutenant, with the explanation that it was intended as a jest. The next intercepted call related to a conversation between the lieutenant and an inmate of the house, in which the lieutenant was seeking to get in touch with Goldstein, and directed that the latter call him as soon as he could, on a matter which was indicated by Hitzelberger as being important. According to the investigator, the lieutenant stated that he remembered making the call. Testimony of the investigator with reference to the several readings of the intercepted telephone communications above mentioned, to Hitzelberger, was substantially corroborated by a special agent of the federal government who was present at the interview between the investigator and the appellant.

Testifying in his own behalf as to the telephone communications above mentioned, Hitzelberger admitted the interview with the investigator, stating that Goldstein had advised him that the Kaminski woman had won $285 at the races, and that he Goldstein, wanted to borrow $100 from her. He further admitted that Goldstein told the woman he would pay the lieutenant the amount of the loan by the first of May, and to call him up, which she did, and that he told her to 'let me know if he doesn't, and I won't let her lose it.' He further stated that one Willie Jones came to see him, stating that the woman could not loan the $100 but would loan $60; whereupon Hitzelberger stated: 'It...