Wilson v. State

• Decision Date: 09 May 1952
• Docket Number: No. 156,156
• Citation: 200 Md. 187,88 A.2d 564
• Parties: WILSON v. STATE.
• Court: Maryland Court of Appeals

Page 187

200 Md. 187

88 A.2d 564

WILSON v. STATE.

No. 156.

Court of Appeals of Maryland.

May 9, 1952.

D. K. McLaughlin, Hagerstown (Francis H. Urner, Hagerstown, on the brief), for appellant.

J. Edgar Harvey, Depty. Atty. Gen., Baltimore, Md. (Hall Hammond, Atty. Gen., and John S. Hollyday, State's Atty., Washington County, Hagerstown, on the brief), for appellee.

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

MARKELL, Judge.

This is an appeal from a judgment and sentence on conviction of bookmaking. Defendant was arrested on a warrant charging bookmaking on October 19, 1951. Before the magistrate the State's Attorney prayed a jury trial. Code, Art. 52, sec. 13. The case was tried in the circuit court without a jury, and defendant was found guilty.

Two questions are presented, (1) whether a search warrant should have been quashed because in it (a) the offense charged was erroneously referred to 'as defined in Chapter 81 of the Acts * * * of 1950' and (b) defendant, 'the individual to be searched', was described (inaccurately he says) and not named, though his name was known to the applicant for the warrant, and (2) whether (a) defendant's motion for a directed verdict should have been granted and (b) evidence of bookmaking on October 12, 1951 should have been excluded.

The same point as to the erroneous reference to Chapter 81 of the Acts of 1950 was made in Carpenter v. State, Md., 88 A.2d 180, and in Saum v. State, Md., 88 A.2d 562, just decided. For the reasons stated in those cases this erroneous reference does not invalidate the search warrant.

The search warrant was dated October 18, 1951. In it defendant was referred to as 'a white man * * * described as being about five feet, nine inches in height, about 180 pounds in weight and about forty years of age, * * * whom affiant [Officer Diggins] had previously heard called Whitey, * * * who will be identified by the affiant'. The warrant commanded the applicant, 'with the necessary and proper assistance, to arrest and search' defendant. The arrest and search were made by Officer Smith on October 19, 1951. At the trial Diggins and Detective Wigfield testified that before October 19th Diggins pointed out defendant, whom Diggins had heard called Whitey and Skinny, and Wigfield said it was Skinny Wilson. Diggins said this was after the affidavit had been prepared but before it had been signed and presented to Judge Mish. In view of the serious consequences of errors in names in the old technicalities of criminal procedure, West v. Cabell, 153 U.S. 78, 85, 14 S.Ct. 752, 38 L.Ed. 643, it may be questioned whether when the search warrant was issued Diggins knew defendant's correct name. However, for present purposes we shall assume that he did know it.

Article 26 of the Declaration of Rights declares that 'all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal'. Art. 27, sec. 306, of the Code provides that a search warrant 'shall name or describe with reasonable particularity, the individual, building, apartment, premise, place or thing to be searched'. In effect, defendant contends that in sec. 306 'name or describe' should be construed to mean 'name, if the name is known, or, if the name is not known, describe'. For this contention defendant cites no decision of this court so construing either the Declaration of Rights or the statute, and only a dictum in United States v. Borkowski, 268 F. 408, a District Court opinion by a District Judge. Another District Court opinion contains a statement to the same effect. United States v. Kaplan, 286 F. 963.

The volume of Maryland and Federal legislation relating to search warrants is in striking contrast. Federal statutes are legion, beginning with an act of July 31, 1789. See list in appendix to dissenting opinion of Mr. Justice Frankfurter in Davis v. United States, 328 U.S. 582, 616-623, 66 S.Ct. 1256, 90 L.Ed. 1453. In Maryland there seems to have been no statute at all before 1939--unless the Bouse Act of 1929 be considered such a statute. The Act of 1939, ch. 749, Art. 27, secs 306-307 is in force, as amended by the Act of 1950, ch. 81. Compared with federal legislation, the Bouse Act and the Act of 1939 show important similarities and also material differences. 'The Bouse Act and the Act of 1939 amount to adoption pro tanto of Supreme Court decisions under the Fourth Amendment.' Wood v. State, 185 Md. 280, 285, 44 A.2d 859, 861. That is to say, the federal decisions have been adopted with respect to prosecution for misdemeanors, but with respect to felonies the former Maryland law remains unchanged. Unlike the Bouse Act, the Act of 1939 was enacted, not to provide additional safeguards for persons accused of crime, but apparently primarily to overcome the effect of the decision, in Sugarman v. State, 173 Md. 52, 195 A. 324 (decided October 29, 1937), that at common law search of an automobile under a search warrant was not authorized.

Rule 4(b)(1) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. provides that a warrant for arrest upon complaint 'shall contain the name of the defendant or, if his name is unknown, any name or description by which he can be identified with reasonable certainty.' 327 U.S. 834. This provision may have originated in some federal statute, and is not without precedent in state statutes (elsewhere than in Maryland). Restatement, Torts, § 125, comment c; West v. Cabell, 153 U.S. 78, 87, 14 S.Ct. 752, 38 L.Ed. 643. Rule 9(b)(1) makes this provision applicable to warrants for arrest upon indictment. Rule 41(c) provides for a search warrant 'naming or describing the person or place to be searched.' We have found no decision of the Supreme Court or any of the United States Courts of Appeals which decides whether or not these words in Rule 41(c) or in antecedent statutes are equivalent to those quoted from Rule 4(b)(1).

Whatever there may or may not be in the long history of federal legislation to justify a restrictive construction of Rule 41, we see nothing to justify us in reading restrictive words into the Act of 1939. We are confirmed in this view by the circumstance that Rule 41(e) expressly provides that, on motion for return of property and to suppress evidence, 'The judge shall receive evidence on any issue of fact necessary to the decision of the motion', whereas we have held that 'the court's consideration of the showing of probable cause should be confined solely to the affidavit itself, and the truth of the alleged grounds stated in the affidavit cannot be controverted * * * by receiving the testimony of the accused and other witnesses.' Smith v. State, 191 Md. 329, 335, 62 A.2d 287, 289, 5 A.L.R.2d 386; Goss v. State, Md., 84 A.2d 57. It might not be necessarily illogical, but it would be incongruous to hold that the court cannot hear evidence as to probable cause, but must hear evidence as to whether or not the applicant knew defendant's correct...