Sugarman v. State

• Decision Date: 29 October 1937
• Docket Number: 7.
• Parties: SUGARMAN v. STATE.
• Court: Maryland Court of Appeals

195 A. 324

173 Md. 52

SUGARMAN v. STATE.

No. 7.

Court of Appeals of Maryland

October 29, 1937

Appeal from Criminal Court of Baltimore City; Eugene O'Dunne Judge.

George Sugarman was convicted of violating the law relating to lotteries, and he appeals.

Reversed and remanded.

Emanuel Gorfine and Ellis Levin, both of Baltimore (Louis M Silberstein and Herbert Myerberg, both of Baltimore, on the brief), for appellant.

Hilary W. Gans, Deputy Atty. Gen. (Herbert R. O'Conor, Atty. Gen., and Philemon B. Coulter, Asst. Atty. Gen., on the brief), for the State appellee.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, and JOHNSON, JJ.

JOHNSON Judge.

Subsequent to his arrest on February 5, 1937, under circumstances to be hereinafter detailed, George Sugarman was indicated, tried, and convicted in the criminal court of Baltimore City on two counts of an indictment, the first of which charged him with having unlawfully in his possession in Baltimore City on February 5, 1937, a book of lottery tickets, while in the second count he was charged with unlawful possession at the same time of certain books, lists, slips and records of numbers drawn in a lottery, likewise with books, lists, slips and records of lottery tickets, slips and records of money which had been received and was to have been received from the sale of lottery tickets, and by which it was promised and guaranteed that particular numbers, characters and slips would in a certain event and upon the happening of a certain contingency, in the nature of a lottery, entitle the purchaser or holder to receive money, property, and evidence of debt. From the judgment and sentence of the court, this appeal is taken.

Eight exceptions are contained in the record to the rulings of the court upon the admissibility of testimony, and, since the case turns largely upon the legality of appellant's arrest, it is important to state at the outset the circumstances connected therewith. On the afternoon of February 5, Officer William Shaffrey had noticed an automobile parked on Parkin street in Baltimore City. The doors of the car were found to be locked and shortly thereafter he observed appellant coming out of a house on Reinhardt street. He immediately stopped him and made inquiry as to the nature of his business, whereupon appellant stated he was working for the Salvage Company as a collector. The officer, after some other conversation, asked him if he had an identification card, and upon receiving a negative reply informed Sugarman that he would have to accompany him to the station house for questioning by Shaffrey's superior officers. He asked appellant whether the automobile on Parkin street belonged to him, and, on being informed that it did, made further inquiry as to whether appellant wished to walk or ride to the station house. Sugarman stated that he would walk. They started walking along the Washington boulevard to James street, and the officer admitted he had not then seen appellant do anything that was 'wrong or unethical,' but he intended to take him to the police station on a general charge of investigation, because appellant's explanation of his business did not look reasonable to the officer. However, when they had reached the 1200 block of James street, appellant said, 'Let me go officer, what's your name? I'll make it all right with you. I'll give you my automobile or anything. You know what I am doing. You know what Judge O'Dunne will do to me.' Later the prisoner said, 'Go to the station house and straighten that out.' The officer replied that he did not wish to hear anything about the prisoner's business, and about this time Sugarman broke away from him and was chased down James to Ostend street, down Ostend to Sargent and disappeared. When he was running around the corner formed by the intersection of Sargent and Ostend streets, he placed his hand in his pocket, but the officer did not see him pull anything therefrom. Before the trip to the police station, the prisoner was taken by Officer Shaffrey to the police call box at Cross street and Washington Boulevard, where they were seen by Officer Palmer, who after having a conversation with Shaffrey proceeded to the 1100 block of Sargent street where he found four slips of paper in the gutter in that block. Notwithstanding the officer in pursuit of Sugarman at the time he passed down Sargent street saw him taking nothing from his pockets, these four slips were subsequently identified as lottery tickets and admitted in evidence over appellant's objection. Later Shaffrey observed Sugarman coming out from Sargent street and proceed north on Cross street, then east on Ramsay street where the witness overtook him and arrested him a second time. He took him to the Southwestern Police Station, and charged him with disorderly conduct. He was searched, but nothing was found upon his person tending to incriminate him, and he was never tried upon the charge of disorderly conduct. They took from his pockets two keys, a savings bank in the form of a book which contained some dimes and a notebook and then placed him in a cell, the floor of which had previously been swept and flushed. Twenty minutes later he again was brought out and searched, but nothing further was found on his person. However, in the cracks of a bench in the coll which the prisoner had occupied were found some small pieces of cardboard paper, which when pieced together conveyed the information that someone would pay '600 to 1' for all numbers drawn containing certain digits. There was also found on the cell floor a masticated and wet piece of paper which the officer stated was 'about the size of a pin head,' but, as this was not used by him in pasting the other slips together, it becomes unimportant. The information thus obtained from pasting together the cardboard slips caused the officers to feel Sugarman was connected in some way with a lottery and they secured a warrant, which on its face entitled them to search his automobile, took the car to the station house, and, unlocking it with a key previously taken from him, found certain lottery tickets in one of its compartments.

Upon the theory that such articles had been obtained from the prisoner by virtue of an illegal arrest, there was filed by him, prior to the trial of the case, a motion to quash the search warrant of prisoner's automobile, and to require the State's attorney of Baltimore City to refrain from using any of said articles, papers, slips, memoranda, notebook, and private effects thus seized, or any information obtained therefrom upon the trial of said cause, and further to require the police officers and State's attorney to return said property so seized to the petition. To the overruling of this motion to suppress, the first exception was noted. The court, in making the ruling, conceded that, while the original arrest was unlawful as not being based upon any crime committed in the presence of the officer, yet his subsequent conversation which the officer constituted an offer and attempt to bribe him, and this of itself being a crime, the second arrest was lawful. But an examination of sections 31 of article 27 of the Code Supp.1935 discloses that the offense of bribing or attempting to bribe an officer exists only when such officer is in the performance of his official duties, and it would scarcely be contended that an officer was acting in the performance of any official duty in making an illegal arrest. Indeed, in such case, the officer not only is not acting in the performance of official duties, but contrary to them, for such conduct can only be regarded as a trespass against the person whom he illegally arrests. To accept any other view would afford members of society no protection whatever against an illegal arrest, merely because an officer entertained some suspicion as to their conduct. The authorities seem in accord that one illegally arrested may use any reasonable means to effect his escape, even to the extent of using such force as is reasonably necessary. 21 C.J. 830, § 17; Ex parte Richards, 44 Tex.Cr.R. 561, 72 S.W. 838; Moore v. State, 44 Tex.Cr.R. 159, 69 S.W. 521; U.S. v. Boyer (D.C.) 85 F. 425; State v. Butler, 178 Mo. 272, 77 S.W. 560; People v. Ah Teung, 92 Cal. 421, 28 P. 577, 15 L.R.A. 190, note; State v. Leach, 7 Conn. 452, 18 Am.Dec. 118.

The State in effect admits the illegality of Sugarman's first arrest and concedes that under the circumstances he is not chargeable with attempting to bribe an officer, but seeks to justify his second arrest, because in some manner the prisoner's remarks to the officer are an admission that he was engaged in some violation of law. The...