Williams v. State

• Decision Date: 10 June 1968
• Docket Number: No. 317,317
• Citation: 242 A.2d 813,4 Md.App. 342
• Parties: John Frank WILLIAMS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 342

4 Md.App. 342

242 A.2d 813

John Frank WILLIAMS v. STATE of Maryland.

No. 317.

Court of Special Appeals of Maryland.

June 10, 1968.

Irving B. Klitzner, Baltimore, for appellant.

Bernard L. Silbert, Asst. Atty. Gen., Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr. and Howard L. Cardin, State's Atty. and Asst. State's Atty. for Baltimore City respectively, on the brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.

ORTH, Judge.

The appellant was found guilty of breaking a warehouse with intent to steal goods of the value of $100 and upwards and peddling without a license at a court trial in the Criminal Court of Baltimore. He was sentenced to imprisonment for a term of 3 years on the warehouse breaking conviction. A fine of $25 imposed on the offense of peddling without a license was suspended.

There was evidence adduced at the trial that the warehouse of The Perfect Garment Co., Inc., a Maryland Corporation, was protected by 'an ADT service' system whereby when the building was secured for the night an 'all clear signal' was received if all doors and windows were securely locked and 'the relay switch to the central office (of the protective service) * * * cleared.' The building was so secured and the switch cleared about 7:30 P.M. on 12 September 1967 when the general manager, charged with locking up the building, left the premises. About 12:30 A.M. the next morning he received a call from the protection service that a 'disconnect signal' had been received. He went to the building and entered it with a police officer. A window in the shipping department on the third floor, which had been closed and locked when he left the building, had been forcibly opened. Skirts and women's slacks, belonging to the corporation, of the value of approximately $400, were missing.

About 1:40 P.M. on 13 September two police officers, in uniform, saw the appellant and another youth, Darrell W. Fedd standing on a sidewalk in the 1500 block of Ashland Avenue in Baltimore City. Fedd had two shopping bags and the appellant had one. The appellant was engaged in coversation with a woman 'who was handling' a skirt. The officers accosted them and the woman said that she was going to buy the skirt. One of the officers, Frank Grunder, asked the appellant if he had a 'Trader's license' and the appellant said that he did not have one and did not know that he had to have one. He was arrested for selling on the street without a license. The shopping bag he was carrying was examined and found to contain a number of skirts. Fedd was also arrested and the bags he was carrying also contained skirts. The officers advised the appellant and Fedd of their 'rights as to counsel, the right to remain silent, anything that they said could be used against them, the whole routine.' The appellant would not say where he got the skirts but Fedd said they had obtained them from a group of boys who were taking the garments out of a big brown packing box. The police went to the place where Fedd said they had obtained the garments but neither the boys nor the box was there. The skirts which had been in the possession of the appellant and Fedd were identified as the property of The Perfect Garment Co., Inc. and as a part of the goods taken from its warehouse. Fedd told the officers where the rest of the goods was located and it was seized under the authority of a search warrant. No evidence was proffered in behalf of the appellant.

The appellant contends that his arrest was illegal and that the goods seized from him incident to the arrest were improperly admitted in evidence. It is settled law that an officer may arrest without a warrant for any misdemeanor committed or being committed in his presence by the arrestee. Shelton v. State, 3 Md.App. 394, 398, 239 A.2d 610; Scott v. State, 1 Md.App. 481, 492, 231 A.2d 728. The question is whether, in the circumstances of the instant case, a misdemeanor was committed or was being committed in the officer's presence. Md.Code (1968 Replacement Volume), Art. 56, § 21, title 'Licenses', sub-title 'Hawkers and Peddlers', provides in relevant part:

'No hawker or peddler shall * * * offer to trade, barter or sell within the State any goods * * * until he shall have first taken out a license for that purpose.'

A foot peddler shall have the license in his possession at all times 'and display the same upon demand of any uniformed officer of the law,' § 23. Any hawker or peddler found 'buying, trading, bartering or selling, or offering to buy, trade, barter or sell any goods, wares or merchandise without having his license with him at the time, or who shall refuse on the request of any sheriff or constable to show his license, shall be considered as selling without license,' § 27. The penalty for committing the offense is a fine not exceeding $100 nor less than $25, to be recovered as other fines are recovered, § 26. ¹ Md.Code (1965 Repl. Vol.), Art. 38, § 1, provides inter alia:

'When any fine or penalty is imposed by any act of Assembly of this State * * * for the doing of any act forbidden to be done by such act * * * or for omitting to do any act required to be done by such act * * *, the doing of such act or the omission to do such act shall be deemed a criminal offense; such offense in the City of Baltimore shall be prosecuted by the arrest of the offender for such offense and by holding him to appear in or committing him for trial in the Criminal Court of Baltimore, which said court shall have jurisdiction in the said cases and shall proceed to try or dispose of the same in the same manner as other criminal cases may be tried or proceeded with or disposed of, or such offenses may be prosecuted by indictment in such court; * * *.' ²

See also Md.Code (1968 Repl.Vol.), Art. 52, § 13(a). Peddling without a license is, therefore, a criminal offense. Not being a felony at common law and not so declared by statute, the offense is a misdemeanor. Fabian v. State, 3 Md.App. 270, 282, 239 A.2d 100. We think the misdemeanor was committed in the presence of the arresting officer. When the officer first approached, the appellant was engaged in conversation with a woman who had a skirt in her hands. 'She gave it back to Mr. Williams and Mr. Williams gave it back to her.' The officer asked them what was going on and the woman said that she was going to buy the garment from the appellant. Upon being asked if he had a license, the appellant said that he did not. ³ See Morgan v. State, 2 Md.App. 440, 234 A.2d 762; David v. State, 1 Md.App. 666, 232 A.2d 553. We feel that it is clear that the officer had reason to believe that the appellant was a 'foot peddler' ⁴ that he was offering to barter or sell goods and that he did not have a license with him at the time. Thus, within the senses of the officer, a misdemeanor was committed in his presence and the arrest of the appellant was lawful. ⁵ The arrest being lawful, the officer had the right to conduct a contemporaneous search incident thereto, both of the person of the arrestee, and of the property under his immediate control. Shelton v. State, supra, 3 Md.App. at 398, 239 A.2d 610. The search being valid, the articles seized were properly admitted in evidence. Dixon v. State, 1 Md.App. 623, 626, 232 A.2d 538.

The appellant also contends that the evidence was not sufficient to sustain the convictions. With regard...