Yanch v. State

• Citation: 201 Md. 296,93 A.2d 749
• Decision Date: 09 January 1953
• Docket Number: No. 55,55
• Parties: YANCH v. STATE.
• Court: Court of Appeals of Maryland

Page 296

201 Md. 296

93 A.2d 749

YANCH v. STATE.

No. 55.

Court of Appeals of Maryland.

Jan. 9, 1953.

Herbert Myerberg, Baltimore (Joseph Leiter and M. Wm. Adelson, Baltimore, on the brief), for appellant.

Kenneth C. Proctor, Asst. Atty. Gen. (J. Edgar Harvey, Acting Atty. Gen., Anselm Sodaro, State's Atty., J. Harold Grady, Asst. State's Atty., Baltimore, on the brief), for appellee.

Before DELAPLAINE, COLLINS and HENDERSON, JJ.

COLLINS, Judge.

This is an appeal from a conviction for the possession of lottery paraphernalia. The appellant and her husband, Connie Yanch, were jointly indicted in eleven counts for lottery and bookmaking activities. Connie Yanch was found guilty of lottery violations, including the possession of lottery tickets. He appealed and later dismissed his appeal. Helen Yanch was convicted of the possession of lottery tickets and appeals.

The appellant, 40 years of age, is the wife of Connie Yanch, who owned and operated a tavern at 3401 East Pratt Street, Baltimore. This entire premises at one time was a private dwelling. The first floor has been converted into a tavern. The front room is the barroom which leads through an open archway to a public dining room. In the dining room were tables and chairs and an upright piano. Attached to the wall between the barroom and the dining room was a public telephone. The license for the tavern was in the husband's name. Appellant assisted her husband in the bar and dining room. She and her husband occupied the second floor as their living quarters, where another telephone was located. Mr. Yanch employed a housekeeper, who also cleaned the tavern.

On February 7, 1952, Sergeant Goldstein, of the Baltimore Police Department, was assigned to observe the premises for suspected violations of the lottery laws. He testified that he went in the tavern and observed 'a man take some yellow conventional lottery slips out of a bag. He made some notations on a slip of paper, and he put them back in the bag, and then handed them to Mrs. Yanch, who was sitting beside [him]. Then she said: 'Let's go', and they both walked out of the tavern, and that is the last I saw of them.' He said by conventional lottery slips, he meant 'the common form slips of paper that is used in lottery business' and he recognized them as such. On cross-examination he admitted that he did not obtain any of these conventional lottery slips. He also admitted that he could not see 'what was actually written' on these yellow conventional lottery slips.

Sergeant Poole testified that on February 11, 1952, about 12 o'clock noon and accompanied by Officer Taylor and Sergeant Goldstein, with a search and seizure warrant, he went to the premises at 3401 East Pratt Street. When they entered Mr. Yanch was behind the bar. There was a lady in the kitchen and a man sitting at the bar. He told them he had a search and seizure warrant and proceeded to search the place. At about five minutes after noon Mrs. Yanch, the appellant, came in carrying some articles. The officers looked through her pocketbook and found nothing. Mrs. Yanch asked the officer if they desired to search the car, which was not included in the search warrant. She consented to the search and they found nothing there. She cooperated with the officers and forced open a locked drawer, to which she had no key, in the safe in the kitchen. Nothing was found there. Sergeant Poole then went back into the dining room. There was a piano there and on top of the piano was a large pile of newspapers. He pulled some of the papers down and in between the sheets of the newspapers, about in the middle of the pile, he found three pieces of paper with lottery numbers on them. These were admitted in evidence over objection, against both the appellant and Mr. Yanch. They proved to be lottery slips with writing on them indicating a play of $20.50. One of the pieces of paper on which the lottery numbers were written was the back of an entry blank in a 'Miss TV Contest'; another had on its back 'Bethlehem Steel Company, Sparrows Point Plant'; and the other was on a small piece of cardboard. These were not conventional lottery slips. The officers also made an extensive search of the upstairs apartment but found nothing.

Martha Taylor said she was supposed to be the housekeeper. She did the light cleaning and the cooking. She cleaned all over the house, including the tavern premises, every day. She admitted that in cleaning the downstairs she picked up newspapers and magazines and placed them on top of the piano. They keep them there to wrap up beer and soda water. Sometimes the newspapers and magazines are picked up on the bar, 'sometimes in back of the bar on the ice box and on the tables in the dining room, scattered all around'. She said there was nothing to prevent a customer from placing a paper on top of the piano or inserting something in papers which were on top of the piano. Sometimes people in the dining room take papers down and throw them up there again. She said she did not put the lottery slips in the newspapers and did not see either Mr. or Mrs. Yanch put them there.

The appellant testified that the newspapers are put on the piano every day. She said: 'I wrap bottles of beer in them, and sometimes I want to look at maybe news that I have read a day before or week before, I look it up. I just save papers. I save magazines too. I got two hundred magazines I save.' She said she never put the lottery slips in the newspapers and never saw them and that customers had access to the newspapers. She denied that she received a paper bag from anyone on February 7th.

The State is not confined in its proof to the date of February 11, 1952, alleged in the indictment and may show that the offense occurred at any time within the period of limitation of one year, which of course would include the date of February 7, 1952. Code 1951, Article 57, Section 11; Curry v. State, 117 Md. 587, 592, 83 A. 1030; Wilson v. State, Md., 88 A.2d 564, 566. The mere possession of lottery tickets is an offense under the statute. Ford v. State, 85 Md. 465, 480, 37 A. 172, 41 L.R.A. 551; Rucker v. State, Md., 76 A.2d 572, 574. The appellant contends that the evidence was not legally sufficient to justify the submission of this case to the jury and that her motion for a directed verdict should have been granted. With this contention we agree.

Since the adoption of the amendment to the Maryland Constitution, Article 15, Section 5, effective December 1, 1950, we have the right and duty, when the question is properly submitted, as in the instant case, to pass upon the legal sufficiency of the evidence in a criminal case. In ...