Mazer v. State

• Decision Date: 20 February 1941
• Docket Number: 9,10.
• Citation: 18 A.2d 217,179 Md. 293
• Parties: MAZER v. STATE. MINIKIN v. STATE.
• Court: Maryland Court of Appeals

18 A.2d 217

MAZER v. STATE.

MINIKIN v. STATE.

179 Md. 293

Nos. 9, 10.

Court of Appeals of Maryland

February 20, 1941

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

Joseph Mazer and Anita Minikin were convicted of making bets on horse races and keeping gambling premises, and they appeal.

Reversed and new trial awarded.

E. Milton Altfeld, of Baltimore (Harry O. Levin, of Baltimore, on the brief), for appellants.

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

Argued before SLOAN, MITCHELL, JOHNSON, DELAPLAINE, and COLLINS, JJ.

MITCHELL Judge.

The appellants, Joseph Mazer and Anita Minikin, in conjunction with Herbert Thornton, were jointly indicted for having unlawfully wagered bets on horse races; sold books and pools on horse races, and occupied, rented and kept certain premises for the purposes of betting and gambling.

The indictment contains fifteen counts, charging in varying forms the indicated offenses, as being in violation of the appropriate sections of article 27 of the Code (Flack's Ed.1939), title, 'Crimes and Punishments', sub-title 'Gaming'.

The validity of the indictment is not questioned and discussion as to its several counts is, therefore, unnecessary. Upon a plea of not guilty, by all three of the traversers, the case was submitted to the court; the verdicts as to Joseph Mazer and Anita Minikin being guilty. From the judgments entered upon said verdicts, these appeals, both of which are contained in one record, were taken.

It is stipulated and agreed between counsel for the State and for the traversers, that at the trial of the cases involved in the appeals, the property, paraphernalia and equipment seized under the search warrant in the cases were used in evidence against both of said defendants, over objection duly made and exception taken to the court's ruling by their counsel. But that such evidence was, by agreement, omitted from the bills of exception for the reason that the only questions to be raised on this appeal are those concerning the validity of the search warrant and the validity of the search and seizure made thereunder. Accordingly, our inquiry relates specifically to the questions submitted by the above stipulation.

Chapter 749 of the Acts of 1939 (Code, Art. 27, § 306), provides as follows: 'Whenever it be made to appear to any judge of the Supreme Bench of Baltimore City, * * * by a writing signed and sworn to by the applicant, that there is probable cause, the basis of which shall be set forth in said writing to believe that any misdemeanor or felony is being committed by any individual or in any building, apartment, premises, place or thing within the territorial jurisdiction of such judge * * *, or that any property subject to seizure under the criminal laws of the State is situated or located on the person of any such individual or in or on any such building, apartment, premises, place or thing, then such judge * * * may forthwith issue a search warrant directed to any duly constituted policeman, constable or police officer authorizing him to search such suspected individual, building, apartment, premises, place or thing, and to seize any property found liable to seizure under the criminal laws of this State, provided that any such 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. If, at any time, on application to a judge * * * of the Criminal Court of Baltimore City, it appears that the property taken is not the same as that described in the warrant or that 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; but if it appears that the property taken is the same as that described in the warrant and that there is probable cause for believing the existence of the grounds on which the warrant was issued, then said judge shall order the same retained in the custody of the person seizing it or to be otherwise disposed of according to law.'

And the record shows that prior to the arrest of the defendants and the search of the premises by the police officers, sergeant Boyle, in accordance with the provisions of the above act, applied to Judge W. Conwell Smith, of the Supreme Bench of Baltimore City, for a search warrant authorizing him to enter the premises known as No. 15 North Howard Street, in said City, and seize and take into custody race bets, race bet slips, and any other paraphernalia used in accepting bets on races found on said premises; the verified application for the warrant being as follows:

'Police Department

'City of Baltimore

'Report

'Western District, Aug. 8, 1940.

'State of Maryland, City of Baltimore:

'I, Sergeant James Boyle, this 8th day of August, 1940, make oath in due form of law that acting on a complaint that bets on races are being accepted at 15 N. Howard St., occupied on first floor as a barber shop by one Joe Mazor, who also occupies basement of said premises, I detailed Patrolman (George Dietrich in plainclothes who reported to me he (Off. Dietrich) entered this barber shop at various times between 12:30 P. M. and 1:45 P. M. on July 24, 1940, July 26, 1940, July 30, 1940, Aug. 1, 1940, Aug. 3, 1940 and Aug. 6, 1940. On July 24, 1940, he remained long enough to obtain a haircut, on other days he got a shave or a shoeshine. During these times, he observed from 6 to 10 men enter this shop on each of these visits, who would receive no barber or other such service, but would proceed to the room in back of the barber shop, whereupon Joe Mazor, or Herbert, the colored bootblack, or Carmelita the manicurist, would follow the man, even leaving a customer on whom they were working, close and lock this door, remain from 3 to 5 minutes and come out; the men would usually be folding a newspaper coming out; sometimes other men would come in, go through the shop to the locked door, rap and were admitted and after remaining from 3 to 5 minutes, went out the front door; in this rear room on first floor was a telephone. On July 26, 1940, while Officer Dietrich was there, the telephone rang several times and the call was taken each time by Joe Mazor; on this date 6 men went into the rear room with Joe Mazor who shortly after came out, leaving the 6 men in there and they were still there when Off. Dietrich left the shop.

'This affiant is a Sergeant in the Police Dept. of Baltimore City and has reasonable grounds for the belief that bets on races are being carried on upon said premises, 15 N. Howard St. 'Wherefore, under Chapter 749 of the Acts of the General Assembly of Maryland, 1939, this affiant hereby makes application for a search and seizure warrant, authorizing him to enter said premises and seize and take into custody race bets, race bet slips, and any other paraphernalia as may be used in accepting bets on races, which may be on said premises.

(Signed) 'Sergt. James Boyle.

_____ 'Sworn and subscribed to before me this 8th day of August, 1940.

(Signed) 'W. Conwell Smith,

'Associate Judge, Supreme Bench of Baltimore City.'

The warrant issued in pursuance of the above application was as follows:

'Search and Seizure Warrant.

'City of Baltimore, Sct.

'The State of Maryland to Sergeant James Boyle of the City of Baltimore, Greeting:

'Whereas it appear to me, the subscriber, Associate Judge of the Supreme Bench of Baltimore City aforesaid, by the written information which has been signed and sworn to by Sergeant James Boyle of the City aforesaid, that said affiant has probable cause to believe that the law prohibiting Bets on Races as defined by Article 27 Section 247 Code of 1927 is being violated by Joe Mazor, 15 N. Howard St. The basis for conclusions as to probable cause is specified in that Sergt. James Boyle states that acting on a complaint that bets on races are being accepted at 15 N. Howard St., occupied on first floor as a barber shop by one Joe Mazor, who also occupies basement of said premises, he detailed Patrolman George Dietrich in plainclothes who reported to him he (Off. Dietrich) entered this barber shop at various times between 12:30 P. M. and 1:45 P. M. on July 25, 1940, July 26, 1940, July 30, 1940, Aug. 1, 1940, Aug. 3, 1940, and Aug. 6, 1940. On July 24, 1940 he remained long enough to obtain a haircut, on other days he got a shave or a shoeshine. During these times, he observed from 6 to 10 men enter this shop on each of these visits, who would receive no barber or other such service, but would proceed to the room in back of the barber shop, whereupon Joe Mazor, or Herbert, the colored bootblack or Carmelita the manicurist, would follow the men, even leaving a customer on whom they were working, close and lock the door, remain from 3 to 5 minutes and come out; the men would usually be folding a newspaper coming out, sometimes other men would come in, go through the shop to the

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