Wright v. State

• Citation: 9 A.2d 253,177 Md. 230
• Decision Date: 29 November 1939
• Docket Number: 32,33.
• Parties: WRIGHT v. STATE. WATKINS v. STATE.
• Court: Court of Appeals of Maryland

9 A.2d 253

177 Md. 230

WRIGHT v. STATE.

WATKINS v. STATE.

No. 32, 33.

Court of Appeals of Maryland

November 29, 1939

Appeals from Circuit Court, Anne Arundel County; Ridgely P. Melvin Judge.

Howard Wright and James Watkins were convicted for selling a lottery ticket and possessing lottery tickets, and they appeal.

Affirmed as to Howard Wright, and reversed and new trial awarded as to James Watkins.

George B. Woelfel, of Annapolis, for appellant in both cases.

Robert E. Clapp, Jr., Asst. Atty.Gen., and Marvin I. Anderson State's Atty., of Annapolis (William C. Walsh, Atty Gen., on the brief), for appellee in both cases.

Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN, MITCHELL, and DELAPLAINE, JJ.

DELAPLAINE Judge.

The appellants were indicted separately, but were tried together, and were convicted and sentenced in the Circuit Court for Anne Arundel County for selling a lottery ticket and possessing lottery tickets in violation of statute. Code, art. 27, §§ 336, 342.

On February 10, 1939, the liquor store of Howard Wright, appellant, in Annapolis was searched by police officers for evidence of a lottery. The officers did not see any violation of law in the store; but, finding a locked box under the counter, they arrested Wright under a 'warrant of investigation' and brought the box along to police headquarters. On searching the accused, Police Commissioner Thomas G. Basil found some money and two lottery slips used in the game of 'numbers.' The Police Commissioner also opened the box and found in it some slips and other articles. There was no evidence that Wright had made may resistance to search and seizure. Two warrants were subsequently issued, charging him with violating the statute.

On February 17 James Watkins, appellant, an employee at the store, suspected of being the owner of contents of the box, was arrested under a 'warrant of investigation.' He was locked in a cell in the jail at 8 P. M., and his attorney was denied the privilege of seeing him or obtaining bail for him until the so-called investigation was completed. About 4 P. M. on the following day, the prisoner was brought from his cell into the office to be grilled. At first he denied possession of any lottery slips, but later he made what the officers claimed to be a voluntary confession.

At the trial of the cases before the Court without a jury, the attorney for the appellants objected to admission of the money and slips and the box and its contents into evidence on the theory that they were obtained by unlawful search. But the search of the liquor store was lawful because the officers were authorized by the Alcoholic Beverages Act of 1933 and the consent of applicants for liquor licenses thereunder 'to inspect and search, without warrant, at all hours, any building and premises in which any alcoholic beverages are authorized to be manufactured or sold.' Code Supp.1935, art. 2B, §§ 5, 34. Since the Alcoholic Beverages Act repealed all laws inconsistent with its provisions, it is impossible to invoke the Bouse Act of 1929 (Code Supp.1935, art. 35, § 4A) to suppress evidence obtained on licensed premises without a warrant. Zukowski v. State, 167 Md. 549, 175 A. 595. It is a general rule that whenever officers have authority to conduct a search, their search can extend to portable effects, such as the contents of baggage, box, or bundle. 56 C.J. 1200. In Alabama, where an accused was arrested without a warrant, and his suitcase was seized and found to contain whiskey, it was held that his rights under the constitutional provision against unlawful search and seizure had not been violated. Jones v. State, 19 Ala.App. 232, 96 So. 721. Likewise, in Maryland, where an officer noticed a package in a suspected man's overcoat and on demanding it found that it contained lottery tickets, our Court decided that the arrest was lawful without a warrant, and that the tickets were admissible in evidence because they were considered voluntarily surrendered. Blager v. State, 162 Md. 664, 161 A. 1. This Court has also held that, since a police officer may arrest an offender without a warrant when a misdemeanor is committed in his presence or view, evidence obtained at the time of arrest, including lottery tickets found on the floor or in the pockets of a coat, was not obtained by unlawful search and seizure. Silverstein v. State Md., 6 A.2d 465. In New York it has been held that a person unlawfully in custody, following arrest without a warrant, can lawfully be arrested under a valid warrant. People v. Bradley, 58 Misc. 507, 111 N.Y.S. 625; 6 C.J.S., Arrest, sec. 4. At the trial of the present cases, the Court admitted the money and the slips and also the box and its contents; eight days later, before announcing the verdicts, the Court excluded the box and its contents from the evidence.

But as there was no reversible error in the trial of Howard Wright, the judgment against him must be affirmed.

In the case of James Watkins, the Court was asked to allow the accused to testify for the sole purpose explaining the circumstances under which the confession was made. The Court ruled that if he took the stand, even though for the sole purpose of explaining the manner in which the confession was obtained, he would nevertheless be subjected to cross-examination 'as to any facts pertaining to the charge in the indictment that may be brought out by his counsel on direct examination.' That ruling of the Court was improper. Inasmuch as the admissibility of a confession is dependent upon its voluntary character, the question of whether or not it is voluntary must be decided in the first instance, when the offer to introduce the testimony is made. The sole question to be determined by the trial judge at that time is whether the confession is admissible because voluntary, or inadmissible because involuntary. 2 Wharton's Evidence in Criminal Cases, sec. 594; Rasin v. State, 153 Md. 431, 138 A. 338.

In describing the manner in which the confession was obtained Watkins testified that Police Commissioner Basil told him that two other men accused of operating the game had been released; and that if he would tell the truth, he also would be released; but if he did not tell the truth, he would get seven years in the Maryland Penitentiary, where the cell and the whole treatment would be...