Scarlett v. State, 57

• Decision Date: 09 January 1953
• Docket Number: No. 57,57
• Citation: 93 A.2d 753,201 Md. 310
• Parties: SCARLETT v. STATE.
• Court: Maryland Court of Appeals

Page 310

201 Md. 310

93 A.2d 753

SCARLETT v. STATE.

No. 57.

Court of Appeals of Maryland.

Jan. 9, 1953.

R. Palmer Ingram and Malcolm J. Coan, Baltimore, for appellant.

Kenneth C. Proctor, Asst. Atty. Gen. (Edward D. E. Rollins, Atty. Gen., Anselm Sodaro, State's Atty. and J. Harold Grady, Asst. State's Atty., Baltimore, on the brief), for appellee.

Before DELAPLAINE, COLLINS and HENDERSON, JJ.

DELAPLAINE, Judge.

Austin Scarlett, a Negro, of Baltimore, was tried in the Criminal Court of Baltimore in December, 1950, on three indictments charging violations of the lottery laws. He was acquitted of those charges. In December, 1951, he and Harry Gross and Horace B. Cann were tried on an indictment charging that on January 1, 1947, and thence continually until August 20, 1951, they unlawfully conspired together and with certain other persons to violate the lottery laws of the State of Maryland. The jury found Scarlett and Gross guilty, and Cann not guilty. In February, 1952, the Supreme Bench of Balitmore City granted Scarlett and Gross a new trial. At the second trial in March, 1952, the jury found Scarlett guilty, and Gross not guilty. The Court thereupon sentenced Scarlett to imprisonment in the Maryland Penitentiary for a term of seven years and to pay a fine of $2,000. He has appealed here from the judgment of conviction.

On August 10, 1950, Officer Allen Carey of the Baltimore Police Department, while watching the residence of the Wilkes family at 604 North Arlington Avenue, saw appellant enter at 12:50 p. m. Shortly afterwards two automobiles stopped near by One of them belonged to appellant. The driver got out, carrying a cigar box and a brown paper bag, and entered the house. A short time later he came out with the box and the bag, entered the car and drove away. Officer Carey kept watch an hour longer, but did not see appellant leave the house.

On August 11 Captain Alexander L. Emerson, after obtaining a search warrant, entered the house and found in the dining room an adding machine and some lottery slips. On the second floor he found in a wardrobe over 1,000 lottery slips and $860.81 played on them. Thomas Wilkes pulled up from behind a sofa 186 lottery slips and $151 played on them. Captain Emerson also seized a pocketbook, which belonged to appellant, from an 18-year-old son of Mabel Wilkes.

On August 12 Captain Emerson obtained a warrant for the arrest of appellant for violating the lottery statute, and on that day entered appellant's home at 2501 McCullough Street and placed him under arrest. In the living room he seized some envelopes containing lottery slips. On the second floor he seized a lottery slip and $17.40. In the basement he seized two adding machines.

Cann testified that Gross informed him that appellant was in the numbers business and wanted him to write numbers, and that before he was caught on June 29, 1951, he wrote numbers for appellant. He also testified that when he was arrested appellant directed him to the office of a certain attorney who would represent him, and promised him that if he was given a prison sentence he would pay him $40 a week during his imprisonment. He further testified that in July, 1951, he was found guilty and was sentenced to the Maryland House of Correction for six months and to pay a fine of $750, but appellant failed to keep his promise, and for that reason he decided to expose to the Court that appellant had been his backer.

First. Appellant challenges the validity of the indictment. One ground of attack is that it does not charge the object of the conspiracy with sufficient particularity, inasmuch as the lottery statute, Code 1951, art. 27, §§ 423-438, sets forth different specific offenses, such as the sale of lottery tickets, keeping a house, office or other place for the purpose of selling lottery tickets, and permitting any house or office to be used for the sale of lottery tickets. A similar contention was made in Hurwitz v. State, Md., 92 A.2d 575, 580, and McGuire v. State, Md., 92 A.2d 582. The Court held in those cases that the evident meaning of the words 'to violate the lottery laws of the State' is to participate in the conduct of a lottery, and therefore an indictment charging a conspiracy to violate the lottery laws of the State sufficiently charges a crime. We reaffirm those decisions.

Appellant also attacks the indictment on the ground that the object of the conspiracy, alleged to have continued nearly five years, from January 1, 1947, to August 20, 1951, was in fact not inherently continuous. He claims that any participant in the conspiracy could withdraw from it at any time. He also suggests that Edgar Wilkes testified that he participated only in 1949 and 1950, while Cann testified that he participated only a few months prior to his arrest on June 29, 1951. The argument seems to be that the conspiracy was complete on the day defendants were charged to have first conspired, January 1, 1947, and that a conspiracy is not a continuing offense in such a sense that each overt act will remove the bar of the statute of limitations against the original conspiracy, and in order to avoid the bar the indictment must charge a conspiracy and an overt act within the limitation period.

It is true that in Maryland all prosecutions for the crime of conspiracy must be commenced within two years after the commission of the offense. Code 1951, art 27, § 46. However, where a conspiracy contemplates bringing to pass a continuous result that will not continue without the continuous co-operation of the conspirators to keep it up, such continuous cooperation is a single conspiracy, rather than a series of distinct conspiracies.

In United States v. Kissel, 218 U.S. 601, 31 S.Ct. 124, 126, 54 L.Ed. 1168, where the indictment charged an unlawful conspiracy in restraint of trade in refined sugar on December 30, 1903, and continuing from that day until July 1, 1909, the defendants argued that the alleged conspiracy was a completed crime as soon as it was formed, and that a plea was proper to show that the statute of limitations had run. In rejecting that argument, Justice Holmes, speaking for the Court, said: 'A conspiracy to restrain or monopolize trade by improperly excluding a competitor from business contemplates that the conspirators will remain in business, and will continue their combined efforts to drive the competitor out until they succeed. If they do continue such efforts in pursuance of the plan, the conspiracy continues up to the time of abandonment or success. A conspiracy in restraint of trade is different from and more than a contract in restraint of trade. A conspiracy is constituted by an agreement, it is true, but it is the result of the agreement, rather than the agreement itself, just as a partnership, although constituted by a contract, is not the contract, but is a result of it. The contract is instantaneous, the partnership may endure as one and the same partnership for years. A conspiracy is a partnership in criminal purposes. That as such it may have continuation in time is shown by the rule that an overt act of one partner may be the act of all without any new agreement specifically directed to that act.'

In Archer v. State, 145 Md. 128, 147, 125 A. 744, the Court of Appeals, in accord with the view expressed by the Supreme Court, held that, although the crime of conspiracy is completed when the unlawful agreement is reached, it is not then exhausted in the sense that the statute of limitations cannot be tolled by the commission of a subsequent overt act. We reaffirm that proposition.

Second. Appellant contends that the lottery paraphernalia seized in his home were procured unlawfully, and hence were inadmissible in evidence under the Bouse Act, Code 1951, art. 35, § 5, which makes inadmissible in the trial of misdemeanors any evidence procured by illegal search or seizure or by search and seizure prohibited by the Declaration of Rights of this State. We find no support for that contention. The general rule of the common law is that, in order to prevent illegal restraint for trivial causes, no arrest may lawfully be made for a misdemeanor, unless it is committed in the presence of the...