Wanzer v. State

• Decision Date: 02 July 1953
• Docket Number: No. 99,99
• Citation: 202 Md. 601,97 A.2d 914
• Parties: WANZER v. STATE.
• Court: Maryland Court of Appeals

Page 601

202 Md. 601

97 A.2d 914

WANZER v. STATE.

No. 99.

Court of Appeals of Maryland.

July 2, 1953.

C. Orman Manahan, Ellicott City, and John F. Lillard, Jr., Hyattsville, for appellant.

Ambrose T. Hartman, Asst. Atty. Gen. (Edward D. E. Rollins, Atty. Gen., and Daniel M. Murray, State's Atty., Howard County, Ellicott City, on the brief), for appellee.

Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

SOBELOFF, Chief Judge.

Edward Wanzer, the appellant, was indicted by the Grand Jury for Howard County on eight counts, six of which charged violations of gambling statutes and two alcoholic beverage law violations. One of the gambling counts was abandoned by the State. A jury found the appellant guilty on the remaining seven counts (five for gambling and two for liquor violations), and the Court sentenced him to serve 11 1/2 months in jail and to pay a fine of $500.

The principal questions raised on this appeal are as to: (1) whether the Court abused its discretion in refusing to grant a removal of the trial, in view of a certain newspaper publication; (2) the propriety of joining in one indictment counts for gambling and for liquor violations; and (3) the admissibility of evidence seized in a search of the traverser's premises.

The facts are simple and not seriously in dispute. At approximately 3 A. M. on Sunday, August 31, 1952, a state trooper, responding to a complaint from a neighbor that loud noises were emanating from Wanzer's property on Guilford Road, went there to investigate. When the trooper approached within 100 yards of the residence, he saw through a picket fence forth or fifty people many of them holding cans of beer, 'milling around' on Wanzer's lawn. However, the trooper did not go into the property until he was accompanied by a Reverend Moore, who lived directly across Guilford Road from Wanzer and who had made the complaint; also a sergeant of the Howard County police, and Justice of the Peace Sanders. Other officers did not arrive till later. After entering the property through the front gate the trooper and the sergeant started arresting those on the property for alleged disturbance of the peace. Approximately one hundred persons fled into the woods in the rear of the Wanzer home, but thirty-eight were arrested. The magistrate, it was testified, accompanied the trooper in order to sign arrest warrants and to fix collateral for those who were apprehended.

On the lawn the trooper saw a roulette wheel, not mounted, but lying close to an improvised gambling table. A bracket on the table was found, upon examination, to fit the roulette wheel. They then entered and searched certain outbuildings and finally the dwelling itself. What they found would be sufficient to show violations of both the gambling and liquor laws. The jury found him guilty on the seven counts which were submitted to them.

I. Refusal of a Change of Venue

The appellant maintained that it was reversible error for the lower court to deny his petition, supported by an affidavit of counsel and seasonably filed, praying a change of venue on the ground that an account of the raid, published in the only local newspaper, was so inflammatory and prejudicial as to preclude a fair trial in Howard County. The newspaper article is as follows:

'38 Arrested in Surprise Guilford Night Club Raid

'State and Howard County police joined in a surprise raid early Sunday morning on a elaborate night club on the Guilford Road and arrested thirty-eight of the over hundred there. Seventy-five eacaped through the woods and fields.

'Quantities of liquor and gambling equipment were confiscated at the entertainment set-up covering an acre of ground with both indoor and outdoor bars and games and arrangements for night-club entertainment including 'strip-teasers' raiders report.

'Trooper George Wells lead the raid on the tip of the Rev. Leonard Moore who lives across the road from the establishment which was surrounded by a 7 foot wooden fence on one side, a dense wood on the other and an open field at the back.

'Edward Wanzer, 37, of Washington, was charged with illegal sale of intoxicating beverages and with violation of the gambling laws and was released under a $3,000 bond.

'The other 37 arrested were charged with disorderly conduct. All but ten posted $17 collateral and others were taken to cells at the Waterloo State police barracks.

'Wanzer and all but four of those arrested were Negroes. The four white men charged gave Washington addresses.

'The equipment included hammocks, tables, beach chairs, a barbecue pit and even a fish pond inhabited chiefly by turtles, police said.

'Outside one shack stood a roulette game and betting table, Trooper Wells said. Inside, the raiders found a well-stocked bar.

'Inside the second small structure, police found a long gaming table which could be used either for dice or cards, the raiders reported.

'Another bar and more gambling devices were found inside the house, Wells said. The investigators also discovered an electric alarm system, extending from the gate and into all three structures, the trooper said.'

We find in it nothing which supports traverser's contention that he was injured by its publication five weeks before the trial. Rather the account appears to be a factual disclosure, and except possibly for the reference to strip-teasers, the reporter seems not to have drawn on his imagination in describing the raid. This article cannot with sound reason be characterized as 'trial by newspaper'. No facts were adduced to support the bare assertion of prejudice, and the petition seems unpersuasive on its face. It is difficult to perceive how, without complete suppression of news, an account like the one in question could be made the basis of complaint. The two constitutional guarantees--freedom of the press and a fair trial by an impartial jury--sometimes present difficult problems to courts which are properly alert to protect both. The facts of this case present no such perplexity and we have no occasion on this record to consider or adjudicate questions which may be raised in proper manner upon different factual foundations. See Downs v. State, 111 Md. 241, 73 A. 893; Baltimore Radio Show v. State, 193 Md. 300, 67 A.2d 497; Larch v. State, Md., 92 A.2d 463; Auchincloss v. State, Md., 89 A.2d 605.

The petition for removal in non-capital cases is addressed to the discretion of the court. This is, of course, a judicial discretion which, if exercised arbitrarily, is subject to correction on review, and there have been numerous instances, according to Chief Judge Bartol in State v. McNally, 55 Md. 559, of review and reversal. We find no abuse of discretion in denying the petition for removal.

II. Joinder of Counts for Gambling and Liquor Violations

The appellant moved to quash the indictment for 'misjoinder of counts'.

Frequently indictments contain several counts alleging the same offense in different ways to meet the evidence, the details of which the prosecutor may not be able accurately to foresee before the trial. The use of multiple counts is not restricted to this situation, for it is well recognized that counts for distinct crimes may be combined especially if they are of the same grade or if they are otherwise connected. People v. Gates, 13 Wend. (N.Y.) 311; Pointer v. U. S., 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208; Simmons v. State, 165 Md. 155, 167 A. 60; Wheeler v. State, 42 Md. 563; Burk v. State, 2 Har. & J. 426.

There is no rigid rule, and the only limitation is that courts will guard against injustice. Where the court, in its discretion, determines that there is reason to apprehend that the accused will be confounded, or the jury distrated by trial of the several counts together, he may order the State's Attorney to elect upon which counts he will stand, or in a clear case he may quash the indictment. Simmons v. State, supra; State v. Bell, 27 Md. 675; State v. McNally, 55 Md. 559. The defendant cannot demand such action as of right where there is no basis for thinking that the joinder of the counts will embarass him in the trial. Such was the rule at common law and it has been consistently followed in this State. Simmons v. State, supra; Toomer v. State, 112 Md. 285, 76 A. 118.

III. Police Entry upon Appellant's Property

We come next to the question of the legality of the police entry upon Wanzer's property.

To indicate that the traverser was conscious of no evil, defense counsel asserted in his opening statement to the jury and repeated during the trial that the gate of the Wanzer place was open to all, including specifically the police of Howard County. When a party makes a show of candor it would seem not unfair to him to accept his statements at their face value, and so it could perhaps be an answer to the claim of illegal entry to say that the appellant invited it. A party is ordinarily bound by admissions made by his lawyer in open court. However, we will decide the question on the merits because the statement is somewhat equivocal, and the testimony in the case seems to disprove the broad statement.

This is not a case in which authority to enter the premises could be claimed under Art. 2B, Sec. 179, Annotated Code of Maryland, 1951, for the reason that Wanzer was not licensed to sell alcoholic beverages. Consequently, this section which authorizes 'any peace officer * * * to inspect and search, without warrant, at all hours, any building * * * in which any alcoholic beverages are authorized to be kept * * *' is inapplicable.

Apart from consent, does the law permit entry by officers, without a warrant, upon private property under such facts as this case presents? The traverser concedes that before the entry, the officer, from his position on Guilford Road, heard loud dance music and laughter, and saw people moving about on the lawn. Entry on...