Noel v. State, 123

• Decision Date: 17 April 1953
• Docket Number: No. 123,123
• Citation: 96 A.2d 7,202 Md. 247
• Parties: NOEL v. STATE.
• Court: Maryland Court of Appeals

Page 247

202 Md. 247

96 A.2d 7

NOEL v. STATE.

No. 123.

Court of Appeals of Maryland.

April 17, 1953.

Charles J. Stinchcomb, Baltimore (Joseph Rosenthal and Josiah F. Henry, Jr., Baltimore, on the brief), for appellant.

Kenneth C. Proctor, Asst. Atty. Gen. (Edw. D. E. Rollins, Atty. Gen., Anselm Sodaro, State's Atty., and Julius A. Romano, Asst. State's Atty., Baltimore, on the brief), for appellee.

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

HENDERSON, Judge.

The appellant was indicted for violation of the lottery laws, tried by the court and a jury, found guilty under counts charging possession of lottery paraphernalia, and sentenced to 10 months in the State Reformatory for Women and a fine of $1,000. The evidence disclosed that the police raided the premises at 2416 West Lexington Street, armed with a proper search warrant, on May 9, 1952, at about 6 P.M. It was a two-story dwelling, with apartments on each floor, but a common street entrance. On the second floor they found the appellant seated beside her bed. In a dresser drawer they found 12 one-hundred dollar bills, a gas and electric bill made out to the appellant, and a paper containing lottery notations. Two lottery slips were found under the mattress of her bed; 18 adding machine tapes were found in the cupboard, other tapes in the bathroom. The slips and tapes indicated a large amount of play, in excess of $76,000. A complete search of the apartment revealed 'nothing that would be used by men'; only 'women's wearing apparel and other things that women would use'. It was stipulated that the telephone and gas and electric service were listed in appellant's name.

The appellant took the stand and denied any knowledge of the lottery paraphernalia. She admitted the apartment was leased in her name, but testified she rented it for herself and her brother who was 21 years old and in the army but stayed there when he was home. He had been there about a week before the raid; he left the money with her as they had planned to buy a house. She was regularly employed at Havre de Grace by an undertaking and trucking firm, and was not at home during the day. In addition to her brother, several other relatives and friends had keys to the apartment.

The appellant does not challenge the legal sufficiency of the evidence, but contends that the court erred in excluding evidence tending to show that a particularly described man had been seen by the police on previous occasions, entering the house under suspicious circumstances during her absence. The defense called Officer Fink, who had obtained the search warrant, and sought to interrogate him about its contents. After objections had been sustained to this line of inquiry, a proffer was made to prove by Officer Fink that on the afternoon of May 2, he saw a described colored man about 30 years old, in an army fatigue jacket, collecting packages from various men, saw him enter 2416 West Lexington Street, and saw him standing at the window in the rear of the first floor.

The affidavit upon which a search warrant is based is not evidence at the trial. Goss v. State, Md., 84 A.2d 57, 58. But evidence of criminal offenses need not be restricted to the exact date mentioned in the indictment or warrant. Wilson v. State, Md., 88 A.2d 564, 566. Testimony, if relevant to the issues, may be introduced even if it parallels matters alleged in the warrant. Berry v. State, Md., 95 A.2d 319. In the instant case we think the defense should have been permitted to interrogate the officer as to what he observed in connection with the premises on March 16 (when according to his affidavit he observed the described man at the second story window of the premises, after he had collected packages and currency from other men), and on May 5 (when he entered the premises under similar circumstances). The State argues that the proffer to show what was observed on May 2 did not place the described man in the second floor apartment, and hence failed to connect him with the appellant or the offense charged. But the court not only excluded the proffer, but sustained objections to specific questions as to other occasions, and the whole line of inquiry. It was possible to gain access to the apartment after entry into the building, and on one occasion the man was observed on the second floor. Cf. Fleming v. State, Md., 92 A.2d 747, 749, and Berry v. State, supra.

The hours when these observations were made were in the early afternoon, when the appellant was presumably at work, and the officer never saw her until the day of the raid. Since the defense was that other persons were using the apartment in connection...