Zerwitz v. State
| Decision Date | 11 November 1954 |
| Docket Number | No. 2,2 |
| Citation | 109 A.2d 67,205 Md. 357 |
| Parties | Allan ZERWITZ v. STATE of Maryland. |
| Court | Maryland Court of Appeals |
Herbert Myerberg, Baltimore (Joseph Leiter, Baltimore, and Bernard F. Goldberg, Ellicott City, on the brief), for appellant.
Ambrose T. Hartman, Asst. Atty. Gen., (Edward D. E. Rollins, Atty. Gen., and Daniel M. Murray, Jr., State's Atty. Howard Co., Ellicott City, on the brief), for appellee.
Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.
The only question presented in this appeal is whether the verdict of the court, sitting without a jury, in a case charging the acceptance of bets on horse races, was clearly erroneous.
For several years prior to the offense charged, the accused had been the proprietor of a pool room in Ellicott City. He usually did not arrive at his place of business until around 1 P.M., commuting from his home in Baltimore City by streetcar. On December 7, 1953, Chief Moxley and Sergeant Harrison of the Howard County police, began to investigate his activities. Over a period of two weeks, they observed him periodically visiting a cab stand, a grocery store and a restaurant in the neighborhood, talking to various men. On several occasions they observed him seated at a table with a scratch sheet before him, taking money from other men. After receiving the money, Zerwitz would go to a telephone and make calls. Finally, on December 17, 1953, after the officers had seen him in consultation with these men, the officers arrested him and took him to the station house. Chief Moxley testified that three race tracks were in operation on that date. A search of the appellant disclosed he had on him $582.27 in currency, in different pockets, an Armstrong Scratch Sheet and a Daily News. No bet slips or similar memoranda were found on Zerwitz, nor did a search of his pool room disclose anything of an incriminating nature.
Chief Moxley testified that while at the police station 'We talked to him about his actions down on the street, what he was doing.' Mr. Murray, the State's Attorney, talked to him and then left Zerwitz and Moxley together. At this point the court asked the witness, 'Doing what?' The witness answered, The accused took the stand and denied making this statement. He testified that the officers questioned him about bookmaking when they arrested him, but he told them he had never made book in his life.
This is virtually all the evidence against the defendant, but we think it is sufficient to support the verdict. His actions in taking sums of money from various men at times and on days when races were being run, his possession of scratch sheets and racing publications and a large sum of money distributed in different pockets, support an inference that he was taking bets on races. The trial court was not obliged to believe his story that he had loaned money to these men, or that the distribution of the money was from fear of robbery. Cf. Berry v. State, 202 Md. 62, 67, 95 A.2d 319. While it is an unusual feature of the case that no notations were found in the handwriting of the accused, it is not incredible that he carried the transactions largely in his head, aided, no doubt, by the distribution of the money in different pockets, and the fact that telephone calls were currently made that would enable the party called to make a written record of the transactions.
But if we assume that Zerwitz's actions, in themselves, might not establish guilt, the testimony of his statement to Chief Moxley would seem to clinch the matter. Zerwitz knew that he was accused of bookmaking, and the statement that he would have 'cut it out', if he had been asked, is an implied admission that he was doing what he was accused of. No question is raised as to the admissibility of Moxley's testimony, to which there was no objection.
The appellant relies strongly upon Sugarman v. State, 173 Md. 52, 195 A. 324, 325. In that case there was testimony that Sugarman, after...
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