Purviance v. State

• Decision Date: 02 November 1945
• Docket Number: 10.
• Citation: 44 A.2d 474,185 Md. 189
• Parties: PURVIANCE v. STATE.
• Court: Maryland Court of Appeals

44 A.2d 474

185 Md. 189

PURVIANCE v. STATE.

No. 10.

Court of Appeals of Maryland

November 2, 1945

Appeal from Criminal Court of Baltimore City; Herman M. Moser Judge.

Clarence Purviance was convicted of having lottery tickets in his possession, and he appeals.

Affirmed.

S Alfred Mund, of Baltimore (Chas. J. Stinchcomb, of Baltimore on the brief), for appellant.

J. Edgar Harvey, Asst. Atty. Gen. (William Curran, Atty. Gen., and J. Bernard Wells, State's Atty., and Bernard G. Peter, Asst. State's Atty., both of Baltimore, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN, HENDERSON, and MARKELL, JJ.

COLLINS Judge.

On January 23, 1945, Sergenant Thomas P. Joyce and Officer James Hines of the Baltimore City Police Department at about 12:10 p. m. were walking through the 1400 block of Hemple Court or Alley in Baltimore City. Sergeant Joyce saw the defendant, Clarence Purviance, appellant here, come out of 1426 Hemple Court and start walking east through the Court about ten or fifteen feet in front of the officers. Officers Hines testified that Purviance was walking toward them. When the defendant saw the officers, he hurriedly walked away from them and ran to the corner. Sergenant Joyce testified that before defendant reached the corner he put his hand into his overcoat pocket as if to pull something out and 'started to draw it out and ran around the corner.' As the officers rounded the corner, they saw the defendant walking away from the rear fence of 1424 Hemple Court, which was adjacement to a vacant lot. Officer Hines ran quickly past Sergeant Joyce and Purviance and looked over the fence. The yard was filled with snow and Hines saw pink number slips lying on top of a white envelope. Officer Hines then quickly called Sergeant Joyce and told him the slips were in the yard. Officer Hines jumped over the fence and picked up the slips which were conventional lottery tickets with Station Nos. 10 and 894 on them and which were perfectly dry. Some were on top of the white envelope and some were inside. Sergeant Joyce then placed Purviance under arrest as the defendant walked toward him and while Officer Hines was on the other side of Purviance, and asked him why he went around the corner. Purviance told them that he went around there to urinate. Although snow was on the ground, there was no evidence that any such act had been committed there, and if such an act had been committed, it would have shown on the snow. When he was searched by the officer, nothing was found on him.

At the trial in the Criminal Court of Baltimore City, before the Court without a jury, where the defendant plead not guilty, he was convicted on the second count of the indictment charging him with having lottery tickets in his possession. After the refusal of a motion for a new trial and after judgment and sentence, he appeals to this Court.

The case comes here on exceptions to the evidence. The fifth exception was taken when the lottery tickets heretofore referred to were admitted in evidence, and the seventh exception was taken upon the refusal of the trial Court to strike out all evidence as to the lottery tickets. In the case of Goldstein v. State (Bevans v. State), reported as a memorandum in 179 Md. 697, and in full in 22 A.2d 471, a burglary had been committed in the neighborhood, and the defendants were followed by police officers in the night time in a radio car. As the car overtook them, two men turned toward an open lot and threw something to the ground. After the man had been arrested and placed in the car, one officer looked back on the lot about five feet away and found a pair of brown cotton gloves and a set of approximately twelve skeleton keys. An exception was taken to the admission of these and other objects in evidence. Chief Judge Bond, speaking for the Court in that case, at page 472 of 22 A.2d, said: 'But the court considers the connection sufficiently evidenced for that purpose. Nothing was lacking to a complete showing of connection except testimony that the men had the articles in their possession previously. Probability is the only requirement, however, and here the probability amounts to little short of certainty. And if there was any room for doubt, the decision was one on the weight of the evidence, not on any question of admissibility.' In the case now before this Court, although the defendant was not seen actually to throw the lottery tickets where they were found, his actions in placing his hand in his overcoat pocket as if to pull something out, running around the corner, and walking away from the fence near the spot where the dry lottery tickets were found in the snow, and his statement as to why he went near the fence, which is convincingly contradicted, amount to probability that he had the lottery tickets in his possession, the weight of the evidence being a question for the Court sitting as a jury in this case.

The appellant relies strongly on the case of Sugarman v. State, 173 Md. 52, 195 A. 324. In that case it was admitted that the arrest, at the time and immediately after which the lottery tickets were found in the gutter near where the accused had been, was invalid. In the case at bar the offense, if any, was committed in the pressence of the officers who made the arrest. The evidence was such to justify the belief of a careful and prudent person that the crime charged had been committed. It was said in Silverstein v. State, 176 Md. 533, at page 538, 6 A.2d 465, at page 467: 'All of these facts and circumstances were observed by the officer, and were of such a nature as would justify a careful and prudent person in the belief that a crime against gambling as denounced by the statute had been committed in his presence or view by the proprietor and his clerk, and that it was his duty to make their arrest without a warrant.' Mitchell v. Lemon, 34 Md. 176, 180, 181; Callahan v. State, 163 Md. 298, 301, 162 A. 856; Romans v. State, 178 Md. 588, 600, 16 A.2d 642. We must therefore conclude that the exceptions 5 and 7 were not well taken.

The first exception was taken when Sergeant Joyce was asked whether he knew anything more about Station Nos. 10 and 894. It was evidence that the defendant objected to this question. The Court admitted it subject to exception. Sergeant Joyce then testified that Station No. 894 shows, in a book not officially required but kept by the Police Department, that it was found in the work of Clarence Purviance in his home at 1420 Hemple Court when he was arrested on December 8, 1943. Also Station Nos. 10 and 894, the same two Stations found on the lottery tickets in the yard at the time of his arrest, were the same as were found in his work when his house was raided. This answer was admitted subject to special exception, and defendant made the motion to strike out this testimony, which the Court overruled. As Sergeant Joyce was not present at the arrest of the defendant on December 8, 1943, and as he did not make the entry in the record book himself, and it was not made in his presence or under his direction, this testimony was clearly hearsay and not admissible at that time, and the exception was well taken by the defendant. Hoogewerff v. Flack, 101 Md. 371, 382, 61 A. 184.

As the question, the subject of the second exception, was not answered, no injury resulted to the defendant, and it is not necessary that we pass upon this exception.

The third and fourth exceptions were taken when Officer Bees testified that he was present when the defendant was arrested at his home, 1426 Hemple Court, on December 8, 1943, and that he made the record himself in the book at the Police Department in his own handwriting, that the Station Numbers that were taken from the lottery tickets at that time, Station 10 and Station 894, are two of the Station Numbers that were found in the defendant's work on January 23rd, and that the man arrested at that time was Clarence Purviance who was the same person on trial in this case. The record book was then offered in evidence over objection and exception, and the sixth exception was taken to the refusal of the trial Court to strike from the record all information contained in the record book. The record book offered in evidence shows the Station Number on lottery tickets, the name of the person accused of having such lottery tickets in possession, and the date. In the case of Owens v. State, 67 Md. 307, at page 312, 10 A. 210, 302, at page 212, the Court said in reference to a copy of a registration pollbook offered in evidence:

'This, as we have seen from the facts stated, is not the case of the use of a book or entry for the mere purpose of refreshing the faded recollection of a witness; but it is the case of a witness who does not profess to be able to repeat from memory all the details of the transaction in question, but testifies that he made correct entries at the time of the transaction as it progressed, and that he knows that such entries were made in accordance with the truth, and that they faithfully represent the whole transaction as it occurred; and the question is whether, in reason or upon any well-settled doctrine of law, such entries ought to be excluded as evidence, when offered in connection with the testimony of the witness? We certainly know of no decision in this state that would require the exclusion of such evidence, nor are we aware of any established principle that requires it. On the contrary, we think both decision and principle fully justify its admission.'

As Officer Bees was present when the arrest and search were made on December 8, 1943, saw the lottery tickets with Station Nos. 10 and 894 in the work of the defendant, and made the record himself in his own handwriting in...