State v. Rosen

• Decision Date: 19 November 1942
• Docket Number: 42,43.
• Parties: STATE v. ROSEN et al. (two cases).
• Court: Maryland Court of Appeals

28 A.2d 829

181 Md. 167

STATE v. ROSEN et al. (two cases).

Nos. 42, 43.

Court of Appeals of Maryland

November 19, 1942

Rehearing Denied Dec. 8, 1942.

Appeals from Criminal Court of Baltimore City; J. Abner Sayler Judge.

Charles Rosen and others were indicted for selling bets on horse races, and Meyer Seidel and another were indicted for conducting a lottery. The cases were consolidated, and the five persons so indicted elected to be tried together, and were found not guilty. The state appeals in both causes.

Appeals dismissed.

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

Ben B Sellman, of Baltimore (Samuel S. Levin and Paul B. Mules both of Baltimore, on the brief), for appellees.

Before BOND, C.J., and SLOAN, JOHNSON, DELAPLAINE, COLLINS, MARBURY, and GRASON, JJ.

JOHNSON, Judge.

Charles Rosen, Louis Rosen, Florence Rosen, Meyer Seidel and Gladys Wilson were indicted by the Grand Jury of Baltimore City, the three first named for selling bets on horse races and the two last named for conducting a lottery. The cases were later consolidated and the traversers elected to be tried together before the court. Later a search and seizure warrant was applied for against all parties to a judge of the Supreme Bench of Baltimore City, who found probable cause to exist and ordered the warrant to issue. The parties were arraigned before the court, waived a jury trial and elected to be tried before the court, consenting to try all cases together. They thereupon on June 2nd moved to quash the warrant, and the court held the matter sub curia until June 9th, on which date he quashed the warrant, because as found by him it did not show probable cause to believe they were guilty of the crime. The court so stated and granted the motion and was informed by the State that the motion being granted they were powerless to proceed. The parties thereupon were found not guilty, and the State appeals.

Appellees have filed a motion to dismiss the appeals upon the well-known ground that they had once been acquitted and discharged upon a valid indictment; that the State has no right of appeal in such a case, unless such right is expressly conferred by statute, and cite: 2 Am. Jur. 984 Sec. 227; 17 C.J. 39, § 3310; 24 C.J.S., Criminal Law, § 1659; State v. Shields, 49 Md. 301; Cochran v. State, 119 Md. 539, 87 A. 400.

In Maryland there exists no such permissive statute, and the court will not 'notice exceptions by the State except in cases where the parties accused have been convicted and have also taken exceptions and appeals.' See, also, State v. King, 124 Md. 491, 496, 92 A. 1041, and Bishop on Criminal Law, 9th Ed., Vol. I, Sec. 992.

For the appellant it is contended that there has been no trial on the merits, also that appellees have not been placed in jeopardy. But this we think is contrary to the fact, because the record definitely shows that before the court acted upon the motion to quash the warrant, Lt. Emerson was placed upon the witness stand by the State,...