Turner v. State

• Decision Date: 10 May 1950
• Docket Number: 155.
• Citation: 73 A.2d 472,195 Md. 288
• Parties: TURNER et al. v. STATE.
• Court: Maryland Court of Appeals

73 A.2d 472

195 Md. 288

TURNER et al. v. STATE.

No. 155.

Court of Appeals of Maryland.

May 10, 1950

C. J. Lancaster, Bladensburg, (Albert R. Hassall Hyattsville, on the brief), for appellants.

Kenneth C Proctor, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., both of Baltimore, Md., A. Gwynn Bowie, State's Atty. Prince George's Co., Upper Marlboro, and Hervey G. Machen, Asst State's Atty. Prince George's Co., Hyattsville, on the brief), for appellee.

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

COLLINS, Judge.

This is an appeal by William H. Turner and Alexander W. Stephens, appellants from convictions on two indictments charging each with the operation of a gaming table and selling beer without a license. The evidence against these two appellants was obtained by a search of the premises without a search warrant or other warrant.

About 1:30 a. m. on Monday, May 15th, 1949, Officers King and Wiseman of the Prince George's County Police Force and Deputy Sheriff Shepp were patrolling the roads of Prince George's County. At that time they received a call by radio to proceed to the Bowie Restaurant because there was a fight at that address. At the time they arrived at the restaurant they found no disturbance. There were a number of people on the outside. The officers went in and talked to Alexander W. Stephens, one of the appellants, and were advised by him that there had not been any trouble there. Stephens was closing up his restaurant for the night and followed the officers outside of the building. The officers in walking toward their car saw a small building on the other side of the road. A light was burning over the door leading into the basement or the first floor of what appeared to be a home. The officers saw a number of people around that door, some with bottles of beer in their hands. They also noticed people coming out of that door of the dwelling carrying bottles of beer. The officers asked Stephens about this place and were told that it was a private club and that they could not go over there. One of the officers said that in spite of this they walked over, went up to the door, some people were going in the door and the officers went right behind them. They saw no one there to stop them and 'nobody had to knock on any door to go in.' When asked the question on cross examination, 'So then you went in without a warrant, although there was no disturbance there, nothing which might make you go in there to quiet anybody, or arrest anybody; is that right?', Officer King answered: 'That is right.' Officer Wiseman testified on direct examination that 'there were cars pulled up in front, and people were out in front and we just went in to investigate, to see what kind of place it was.' They walked 'in just like you walk in any other open door saloon.' On cross examination Officer Wiseman testified that 'there were people milling around on the outside. * * * Well, it was quite a few of them there that was intoxicated.' He said that he did not see any disturbance of the peace or any disorderly conduct before he entered the house and they just went over to investigate, 'to see what kind of place it was, and see if the trouble was over there that we were called on.' Deputy Sheriff Shepp testified. 'We came back out of Patsy Johnson's started to go to the car, noticed a large gathering opposite Johnson's place, or Stephens' place, on the Laurel- Bowie road, in front of what appeared at that time to be a home, except for a light down in the basement and a door, people going in and out of the door, crowd standing around front,--by 'crowd,' probably 12 or 14 people milling around there, laughing and talking, some with beer in their hands, drinking. So Officer Wiseman started across the street, I followed him across, Officer King; they went in the building, I went inside and stayed inside the door, by the door.'

As the officers entered this first floor or basement room they saw forty or fifty people sitting in booths, some standing in the center of the floor and some at the bar. They saw William Turner put two bottles of beer on the counter and then turn and ring up an undisclosed amount on the cash register. Two people grabbed this beer and went back and sat down in a booth. In the center of the room there was a music box and two slot machines commonly called 'One-armed bandits.' They also saw bottles of beer on the table. Sergeant Thompson of the Prince George's County Police Force was called by radio and he arrived at the premises about 2:00 a. m. He played the two slot machines putting in three nickels and receiving four back on the third nickel. These two slot machines, seven cases of assorted beer, and the two defendants were taken to Hyattsville, where they were charged with the crimes set out in the indictments. Testimony was offered that the premises entered was that of Bowie Social Political Club, incorporated, that appellant Stephens was one of the incorporators of the corporation, and that the basement room entered was rented to Stephens. The remainder of the house was occupied as a home by other people. These premises had no license to sell beer and a search of the premises was therefore not authorized under the statute permitting the search of places authorized to sell alcoholic beverages. Code 1947 Supplement, Article 2B, section 161. Zukowski v. State, 167 Md. 549, 555, 175 A. 595.

Appellants claim that the evidence obtained when the officers entered the premises without a search warrant or any other warrant was not admissible against them.

Since the passage of Chapter 194 of the Acts of 1929, now modified by Chapter 752 of the Acts of 1947, Article 35, section 5, 1947 Supplement of the Code, commonly known as the Bouse Act, evidence obtained by means of an unlawful search and seizure is inadmissible in the trial of misdemeanors. Silverstein v. State, 176 Md. 533, 540, 6 A.2d 465; Leon v. State, 180 Md. 279, 282, 23 A.2d 706; Frantom et al. v. State, Md., 72 A.2d 744. However, if a misdemeanor is committed in the presence or view of an officer he may arrest the offender immediately without a warrant. Callahan v. State, 163 Md. 298, 300-302, 162 A. 856; Silverstein v. State, supra; Bass v. State, 182 Md. 496, 505, 506, 35 A.2d 155. After such an arrest the officer may, as an incident thereto, at the same time, search the person arrested and also search for and seize any evidence or instruments of the crime 'whether upon his person or within his use and immediate control or possession.' Silverstein v. State, supra, 176 Md. at page 541, 6 A.2d at page 468; Callahan v. State, supra, 163 Md. 300-301, 162 A. 856; Bass v. State, supra, 182 Md. 506, 35 A.2d 155; Johnson v. State, Md., 66 A.2d 504, 511. The room of the person arrested in which the commission of the crime was seen can be searched for tangible evidence and instruments of the crime. Johnson v. State, supra, 66 A.2d 511; Silverstein v. State, supra, 176 Md. 541, 6 A.2d 465; Hubbard v. State, Md., 72 A.2d 733.

Therefore, the question before this Court in this case is whether there was evidence that a misdemeanor was committed in the presence or view of the officers, before their entry, in the room entered. As was said in the case of Romans v. State, 178 Md. 588, at page 600, 16 A.2d 642, at page 647: '* * * Committing an offence in the presence of the public officer embraces not only what is seen, but also, what is heard or is perceived by any other sense.' Johnson v. State, supra; Silverstein v. State, supra; Bass v. State, supra.

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