Heyward v. State

Julius Heyward, the appellant, with one Henry Gorman, was indicted by the grand jury of the City of Baltimore for violation of certain provisions of the criminal code pertaining to lottery, article 27, sec. 336, et seq., of the Code of Public General Laws of Maryland. When the case came up for trial in the criminal court of that city, a severance was granted; and separate trials were had in that court. The indictment contained eleven counts, but in this case we are interested only in the fourth and fifth counts, upon which the defendant Heyward was found guilty by a jury. In the fourth count he was charged with having in his possession lottery tickets, not for the purpose of procuring and furnishing evidence of the violation of any of the provisions of the law relating to lotteries; and in the fifth count with having in his possession "divers books, lists, slips and records of numbers drawn in a lottery; divers books, lists, slips and records of lottery tickets; divers books, lists, slips and records of money which had been received, and which was to have been received from the sale of lottery tickets, and things in the nature thereof; and divers things by which it was promised *Page 688 and guaranteed that particular numbers, character, tickets and certificates would, in a certain event, and upon the happening of a certain contingency in the nature of a lottery, entitle the purchaser or holder to receive money, property and evidence of debt; * * * at the time he so there had in his possession the said books, lists, slips and records of numbers drawn in a lottery, books, lists, slips and records of lottery tickets, books, lists, slips and records of money which had been received, and which was to have been received from the sale of lottery tickets, and things in the nature thereof, and things by which it was promised and guaranteed that particular numbers, characters, tickets and certificates would, in a certain event, and upon the happening of a certain contingency, in the nature of a lottery, entitle the purchaser or holder to receive money, property and evidence of debt, not having the same in his possession for the purpose of procuring and furnishing evidence of the violation of any of the provisions of the law relating to lotteries. * * *" Upon the jury's verdict of guilty on the above counts, the defendant was sentenced by the court to pay a fine of $1,000, and be imprisoned for the term of sixty days in the city jail.

It is from that judgment of the court that the appeal in this case was taken. The State, in support of the charges brought against the defendant, placed upon the stand Sergeant Edward L. Hitzelberger, who testified that he was from the Northwestern District, and that, as a result of certain complaints and information received by him, he, for several mornings prior to May 20th, 1931, watched the movements of Heyward in respect to or in connection with 1716 Brunt street; and on May 20th, 1931, about eleven in the morning, he went to 1716 Brunt street. A man walked in the house and he walked in with him, behind him. Witness then walked to the back room and there were a man by the name of Gorman (Henry Gorman) and two others.

In the meantime he had placed Officer Bradley at the rear and had told one of the men to go down and let Officer Bradley in the house, which *Page 689 he did. Witness told Bradley to stay at the front door, and they waited there for about a half an hour, knowing that he always visited this house in the morning. While they were waiting there, Heyward came there, and witness placed him under arrest and took him to the station house. Witness sent him to the station house in the patrol wagon, and witness got permission from Heyward to drive his car to the station house.

On driving the car down there he found a lot of lottery slips and books on the floor of the car, and when the turnkey searched Heyward at the station house, he found slips on him, and envelopes with money in them, which he had collected from going around to the various pick-up stations. Witness was there when the turnkey was searching him. Thereupon the witness was shown some forty or fifty little envelopes with figures on the outside which he testified in some instances contained money. The State then offered in evidence the papers which were found upon Heyward after his arrest at the station house.

An objection to the admission of these papers in evidence was overruled. This ruling constitutes the first exception to the admission of evidence, though it appears in this record as the second exception. The first was to the action of the court in refusing to grant the prayer in defendant's petition, filed and heard before the commencement of the trial of the case upon its merits, asking that the papers, slips, and books found in defendant's car, as well as the slips and papers found upon him after his arrest at the station house, then in the possession of the State, be returned to the defendant. The witness then testified that he had been working on lottery cases of this character about eighteen months, and that within that time he had handled some six hundred cases.

He was then asked: "Will you please tell * * * just how a lottery is operated, based upon your experience" An objection made to this question was overruled. The State, at the request of the defense, reframed its question, and the witness was asked: "Will you tell the gentlemen of the jury just how a lottery is operated based upon your experience in such things?" An objection to this question was likewise *Page 690 overruled, and to this ruling an exception was noted, which appears in the record as the third exception. The witness then answered, saying: "Well, it is three numbers played. We will take three four nine, or eight six nine, or seven two one.

Any three numbers. They pay five hundred to one. In other words, if you put up a penny you win five dollars. The writer gets a commission of ten per cent. from the winnings, which nets you four dollars and fifty cents for your cent.

He also gets twenty-five per cent, some of them pay twenty, and some twenty-five and some thirty-five." The court then asked: "Now, are they all alike?" And the answer was: "No, sir. Some of them pay five hundred to one and some of them pay six hundred to one, and then —" At this point the court, interrupting the witness, said: "Well, I will not permit the general testimony. I will strike out all that." Question: "Well, now, Sergeant, come on down to my question and tell me how a lottery is operated?" There was an objection to this question and the court replied: "I think I shall rule out that testimony." It will be seen that the witness in the third exception was permitted to answer the question as to how a lottery was operated, but thereafter the court struck out the answer involved in that exception. Consequently, the third exception is not before us.

The witness also testified that he had watched Heyward for two days; that Heyward was in and around 1716 Brunt street; he would leave his car parked at Laurens and Brunt Streets, and then walk down Brunt Street to the house about half a block, and go in; Heyward did this about 11 o'clock each of the two days that he watched him. The witness, when asked, "What, if anything, did Heyward say when he was placed under arrest?" replied: "He asked me to pass him up and he would not come around there any more." The books the witness found in the car were then offered in evidence, and, after an examination of them by the court, they were admitted. After the admission of these books, the court said: "I will grant you an exception, of course, to the admissibility of these books, Mr. Joseph." Mr. Joseph *Page 691 said: "Yes, sir." And thereupon the books referred to were handed to the jury to be examined. As shown by the record, this constituted the fifth exception.

The sixth exception was taken to the ruling of the court in permitting the witness to testify that books were used in running a lottery, and, when asked what sort of books, he said: "Triple sheets." And when asked to describe them more fully, he said: "Well, there is a number on them and also a number given each writer, in the book. You will see it there (indicating), if you look, and there you will also see each paper in triple form and each one has that number. A serial number." "Ques.: All right? Ans.: And the name of the corporation." The court was asked to strike out the last answer, and upon refusal to do so the seventh exception was taken.

On cross-examination, the witness testified that he had no warrant to enter and search the house or to arrest Heyward. Officer Bradley, also of the Northwestern District, testified that he was with Sergeant Hitzelberger on March 20th at 1716 Brunt Street. He went to the rear and was let in the house by a colored man. "When I got in there, Sergeant Hitzelberger was in the kitchen, where Gorman and three other colored men were seated at a table. * * * They were seated there with lottery slips in front of them.

Sergeant Hitzelberger then told me to take the front door and to watch for the `pick-up man' which I did, and when Heyward came in there we arrested him and Gorman and the rest of them, and took them to the station house, where Heyward was searched." The witness had watched Heyward prior to that day and that he went to 1716 Brunt Street. They did not see him go to any other place; after he left there they generally lost him; he had a machine. Witness was present when Hayward was searched at the station house, and some envelopes and money were taken off him, those that were offered in evidence. The second exception, as we have said, was to the admission in evidence of the slips, envelopes with money in them, *Page 692 found upon the person of Heyward when searched after arrest at the station house.

The admission of the papers and envelopes in evidence depended upon the legality of his arrest. It is a settled law that an officer has the right to arrest without a warrant for any crime committed within his view. It was his duty to do so at common law, and this is still the law. Balto.

O.R. Co. v. Cain, 81 Md. 100 , 31 A. 801 ; Roddy v. Finnegan, 43 Md. 504 ; Mitchell v. Lemon, 34 Md. 181 . In Roddy v. Finnegan, supra, in which the party was charged with violating an ordinance of the City of Baltimore, Judge Stewart, speaking for the court, said: "Finding the parties in the act of violating the ordinance, Roddy was not only justified in making the arrest and detention of the offenders for hearing, but his duty required him to do so, upon his responsibility as a police officer, without obtaining a warrant from any other quarter. "The consequent delay in the procurement of a warrant, might have enabled the parties to make their escape — such narrow construction of his duty would be unreasonable, and is utterly unwarranted. * * * They (police officers of Baltimore City) have the power to prevent the commission of crime and to arrest and detain offenders for hearing, without warrant, * * * where the offense, whether by the common law, by statute, ordinances of the city, or police regulation, is committed within their view, it is their duty to do so. Baltimore v. Howard, 15 Md. 376 ; Altvater v. Baltimore, 31 Md. 462 ; Mitchell v. Lemon, 34 Md. 176 ." In this case the officers making the arrest received information relative to the supposed violation of the lottery laws at 1716 Brunt Street, the home of Gorman.

Upon the receipt of this information, the officer began a personal investigation. He visited the vicinity of 1716 Brunt Street on two separate and successive days; he not only saw ten to fifteen persons go into and come out of the house with papers in their hands before eleven o'clock in the morning, but he also saw on each of those occasions the defendant, who was, as he testified *Page 693 without objection, "a pick-up man," drive his car to a location on Laurens Street about half a block from 1716 Brunt Street, and there stop his car and walk to the said house on Brunt Street, go in and come out, and return to his