Callahan v. State

Parke, J., delivered the opinion of the Court. The traverser was under indictment for an alleged violation of the local law which made it unlawful to' sell, or to have in possession with the intent unlawfully to sell, intoxicating liquor within Anne Arundel County, without first having taken out a license. Section 184A of chapter 568 of the Acts of 1890, codified as. article 2, sec. 34 (page 362) of the Code of Public Local Laws of Maryland (Flack’s Ed. 1930) ; Molinari v. State, 141 Md. 565 , 119 A. 291 ; Weisengoff v. State, 143 Md. 638 , 123 A. 107 . He was tried, convicted, and sentenced, and he has appealed because of two alleged errors.

The first is said to have been made when the court refused to exclude from evidence the seizure of several bottles of intoxicating liquor in traverser’s automobile at the time of his arrest by federal officers. One of the officers, on information that illicit sales of intoxicating liquor were being made, ordered rum by telephone of the person who so held himself out as having it for sale, and requested that it be ³⁰⁰ delivered at a designated hotel in Annapolis. The seller appeared at the appointed place and time. After the officer had satisfactorily identified himself by giving a fictitious description of the personal appearance of the party in whose name the beverage had been ordered, the traverser said he had brought three quarts of Bicardy rum, gave the selling price, stated the liquor was in his automobile, and that he would either bring it in or, preferably, deliver it at the automobile.

Accordingly, the two went out of the hotel, where they had met, to the parked automobile. A& the traverser bent over to get the rum, which the officer saw was on the seat in a brown paper bag, the traverser was placed under arrest. The bag was then taken from the automobile by the officer and opened by him in the hotel, and the promised three quarts were in the bag. The sale of intoxicating liquor was not only an offense under the federal statute, but it was also a misdemeanor under the local statute in force in Anne Arundel County.

The traverser contends that, on the given facts, there was an illegal search and seizure, and so the evidence obtained is not admissible because the Bouse Act, section 4A. of article 35 of the Code of Public General Laws of Maryland (Supp. 1929), provides: “No evidence in the trial of misdemeanors shall be deemed admissible where the same shall have been procured by, through, or in consequence of any illegal search or seizure or of any search and seizure prohibited by the Declaration of Bights of this State.” The provisions of the statute here invoked have no application. By the traverser’s acts and professions to the officer, lie was at the time of his arrest engaged in the commission of what was at once a crime under the federal law and the local statute. His offense was therefore against both the sovereignty of the United States and that of the State of Maryland, and concerned a subject-matter which, in consummation of his crimes, he was about to deliver to the officer when his hand was stayed by the arrest. The traverser was taken in flagrante delicto, and his apprehension and the confiscation of the intoxicant were but the proper ³⁰¹ discharge of an official duty.

No constitutional right nor immunity was violated. If a misdemeanor he committed in the presence of an officer who is charged with the enforcement of the law, he is, authorized, without warrant, to arrest the offender (Heyward v. State, 161 Md. 685, 692 , 158 A. 897 ; Mitchell v. Lemon, 34 Md. 176, 180, 181 ; Roddy v. Finnegan, 43 Md. 490, 504, 505 ; see Balto. & O. R. Co. v. Cain, 81 Md. 87 , 31 A. 801 ; Brish v. Carter, 98 Md. 445 , 57 A. 210 ; Cornelius on Search and Seizure, secs. 25, 27-30) and then, as an incident of the arrest, to search his person, and to seize and search the immediate and present evidence and instrument of his crime. Blager v. Maryland, 162 Md. 664 , 161 A. 1 ; Heyward v. State, 161 Md.