Martin v. State

• Decision Date: 01 October 1953
• Docket Number: No. 4,4
• Parties: MARTIN v. STATE. ,
• Court: Maryland Court of Appeals

Page 66

203 Md. 66

98 A.2d 8

MARTIN v. STATE.

No. 4, Oct. Term, 1953.

Court of Appeals of Maryland.

July 2, 1953.

William H. Murphy, Baltimore, for appellant.

Ambrose T. Hartman, Asst. Atty. Gen. (Edward D. E. Rollins, Atty. Gen., and Anselm Sodaro, State's Atty., on the brief), for appellee.

Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

The appellant, Raymond Martin was held for trial upon four indictments, three of which charged him with burglary, and the fourth with being a rogue and a vagabond, within the meaning of Article 27, Section 576 of the Code (1951 Ed.). The appellant was tried in the Criminal Court of Baltimore City by Judge Smith, without a jury. He plead not guilty. One of the burglary indictments was abandoned during the course of the trial. He was found guilty on each of the remaining indictments and sentence was withheld, pending a motion for a new trial. The motion for the new trial was granted on the two indictments for burglary and was denied on the indictment charging him with being a rogue and a vagabond. He was sentenced to serve not more than two years in the Maryland Reformatory for Males, and this appeal is from that judgment and sentence.

On December 21, 1952 at 11:05 P.M., the appellant was seen by a police officer in the rear of a factory owned by the Phoenix Manufacturing Company, which is located at 1201 Sharp Street, Baltimore. The appellant, on being questioned concerning his presence in the rear of the factory, answered that he 'was just walking through the alley', and that he now lived in that part of town, that he had been at a dance at a small club in Peach Alley, and had stopped to relieve himself. He was held for investigation. At the Station House he was searched, and was found to have in his possession a pair of pliers, three screw drivers, a wrench, and a drill, all of which were stuck down inside his jacket. The factory had been twice burglarized within five weeks. On one occasion, a dozen hunting trousers and several dozen men's and boys' shirts were taken. The other time some fifteen dozen men's and boys' shirts were taken.

Section 576 of Article 27 of the Code, under which appellant was convicted, in the part here applicable, reads as follows: 'If any person shall be apprehended having upon him any pick-lock, key, crow, jack, bit, or other implement, at places and under circumstances from which an intent may be presumed feloniously to break and enter into any dwelling-house, warehouse, storehouse, stable or outhouse, * * * every such person shall be deemed a rogue and vagabond, * * *.'

The appellant makes two contentions--one, that the articles found in his possession at the Station House should not have been admitted in evidence because his arrest was illegal and therefore the evidence found as a result of that arrest is not admissible; two, that even with the implements found on him in evidence, the charge of which he was found guilty is not sustained by the evidence.

The question as to the admissibility of the evidence arose in this manner. Officer Cook was asked by the State's Attorney to give the time, date and circumstances of the arrest. The officer's testimony, with the objection of the appellant's counsel, the subsequent testimony, and the motion to strike, is shown by the record as follows:

'A. About 11:05 p.m., December the 21st, 1952, while on my way to work, I observed Raymond Martin, colored, age 17, in the rear of 1201 Sharp Street. I picked Raymond Martin up for investigation, and brought him to the station house, where I turned him over to Sergeant Lansdowne and Officer Hogan. And with Sergeant Lansdowne and Officer Hogan we went to 1607 Rutland Avenue, Raymond's home, and there we found two pair of thread clippers that were reported in a burglary in the company located in the building.

'Mr. Murphy: I object to that, Your Honor. I object to this mode of----

'The Court: Yes, reported--strike it out.

'Mr. Rogers: All right.

'Q. (By Mr. Rogers) Now, Officer, before you go into that, what, if anything, did you find in the possession of this boy at the time you made the arrest? A. When the man was searched at the station house we found three screw drivers, and a drill in Raymond's possession.

'Q. Now, where did he have them? A. And a pair of pliers. Had them stuck down inside his jacket.

'Q. Now, I show you these tools. Can you identify them, Officer? Screw drivers, wrench, and a few other items. Can you identify these items? A. I can.

'Q. And what are they, Officer? A. Those are the three screw drivers, wrench, a pair of pliers, and a drill that were taken from Martin, on his person at the station house.

'Mr. Rogers: We offer all of these as State's Exhibit Number 1, Your Honor.

'Q. (By Mr. Rogers) When he got to the station house, did you question him, Officer? A. Yes, I did.

'Q. And at that time what did you say to him, and what did he say to you? A. We asked him what he was doing in the rear of 1201 Sharp Street, and he stated he was just taking a walk through the alley. He was taken short and stopped there for that reason. And when I asked him what he was doing in this part of town, he told me he was living over here now. After being taken to the station house and talking to him for a while, still admitted living at 1607 Rutland Avenue.

'Q. Now, at that time, did he say anything to you about a dance on that evening? A. There was a small club up in Peach Alley, and Raymond claims he was coming from there, a bunch of juveniles, that sort of club, were with him up there. He stated he was coming from there.

'Mr. Rogers: All right, witness with you.

'Mr. Murphy: If Your Honor pleases, I move to strike out all of the testimony of this officer, for the reason that it now appears that when the arrest was made there was no probable cause, no reason whatever, for having arrested this man. The officer testimony states.

'The Court: The motion is overruled.'

We will assume, without deciding that the arrest of the appellant was illegal, and that after being indicted as a rogue and vagabond, a misdemeanor, he could upon motion to quash, prior to trial as permitted by Rule 3, Criminal Rules of Practice and Procedure, or by a timely objection to the evidence when offered at the trial, have prevented the introduction into evidence of the implements found on him. We think, however, that the appellant waived this right by failing to object to the evidence at the time it was offered. The principle governing the time for objection, which has been stated and restated, is that the one against whom evidence is offered must object as soon as the applicability of the evidence is known or should reasonably have been known to him. Wigmore on Evidence, Third Edition, Section 18. In Dick v. State, 107 Md. 11, 68 A. 286, 287, 576, the defendant in a criminal case, at the close of the questioning of a witness, objected to testimony. Objection was overruled. The Court held that the evidence 'was given without any objection, and so went to the jury, and the objection as made came too late.'

In Klecka v. State, 149 Md. 128, 131 A. 29, it was held that an objection to the admissibility of evidence containing a specific question, must ordinarily be made as soon as the question is stated and before the answer is given or there is a waiver. See also Deibert v. State, 150 Md. 687, 693, 133 A. 847; Courtney v. State, 187 Md. 1, 4, 5, 48 A.2d 430; Asner v. State 193 Md. 68, 65 A.2d 881; O'Connor v. Estevez, 182 Md. 541, 35 A.2d 148, and Rogers v. U. S., 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344.

Here, the implements found on the appellant were the very essence of the charge against him. He did not avail himself of the opportunity to move before trial that they be returned to him or held unavailable as evidence against him, because of the illegality of the arrest, nor did he object at the trial until they were fully in evidence. There was no element of surprise and no lack of notice that their applicability was immediate, fundamental and vital. We think the waiver of the appellant was complete and that the motion to strike came too late. In Asner v. State, supra, there had been a motion to quash and a specific objection to the very evidence which later slipped in without objection. Here there is neither.

Maryland's policy has been to adhere consistently to the rule that evidence wrongfully obtained is not for that reason alone inadmissible. It is held that the Courts will not inquire into how evidence was procured, but if it is relevant, will admit it. Meisinger v. State, 155 Md. 195, 141 A. 536, 142 A. 190, and Johnson v. State, 193 Md. 136, 66 A.2d 504. This common law rule still applies in felony cases, although in prosecutions for misdemeanors, it has been abrogated by the provisions of Section 5 of Article 35 of the Code (1951 Ed.), known as the 'Bouse Act'; yet the protection of the Bouse Act may be waived by the traverser as we find it was here. See Courtney v. State, supra, at page 7 of 187 Md., page 430 of 48 A.2d. An illegal arrest does not prevent one from being validly indicted and tried. State ex rel. Bryant v. Warden, 196 Md. 646, 74 A.2d 833.

It is clear that a waiver as to evidence illegally obtained operates with full effectiveness and results in the evidence admitted being given the same probative force as if it were competent. 23 C.J.S., Criminal Law, § 1078 c; Segurola v. United States, 275 U.S. 106, 48 S.Ct. 77, 80, 72 L.Ed. 186. Mr. Chief Justice Taft there said to the Court: 'To preserve their rights under the Fourth Amendment, they must at least have seasonably objected to the prduction of the liquor in court. This they did not do, but waited until the liquor had been offered and admitted and then for the first time raised the question of legality of seizure and probable cause as a ground for withdrawing the liquor from consideration of the jury. This was too late.' See Courtney v. State, sup...