Hitzelberger v. State

Mitchell, J., delivered the opinion of the Court. Edward L. Hitzelberger, the appellant, was presented on August 6th, 1987, and thereafter indicted by the grand jury of Baltimore City, for malfeasance in office. The indictment contains three counts, the first charging that, while a member of the police force of said city, the appellant permitted, connived at and allowed Shirley Kaminski and Carroll Goldstein to maintain and conduct a house of prostitution; the second, with having likewise permitted Florence Reed to maintain and conduct a house of prostitution, and the third, with having in like manner permitted Betty Byrd to maintain and conduct a similar place. He was convicted by a jury in the Criminal Court of said city, and sentenced to the Maryland Penitentiary for the period of one year, and from that judgment this appeal is taken.

The record reveals that Hitzelberger for more than twenty-six years served in various capacities on the city police force, and filled the position of lieutenant at the time of the beginning of the investigation which culminated in his indictment. At that time, and in his capacity as lieutenant, he was assigned to the Northwest District of Baltimore City, in which territory the three alleged houses of prostitution were located. All three of the above houses were raided by investigators of the Department of Justice on May 15th, 1937, and the operators or proprietors of each of them were arrested and charged with violations of the federal law. Upon the respective charges against them Carroll Goldstein, Shirley Kaminski, Florence Reed, and Betty Byrd were each sentenced to serve terms of confinement in federal prisons, by the United States District Court for the District of Maryland.

At the trial of the instant case the State produced Carroll Goldstein, who testified that he had known the appellant for more than twenty years, and at the time ¹⁵⁶ of the above raid and for two and a half years ■ prior thereto, had lived at 801 W. Dolphin Street, one of the disreputable houses in question, which was conducted by the .Kaminski woman. That he formerly lived on Eutaw Street, and that at his former home he arranged a meeting between the appellant and Shirley Kaminski, at which Hitzelberger approved of the plan of the woman to open the Dolphin Street house for immoral purposes. This meeting took place about two and a half -years previous to the trial, and, according to the witness, marked the beginning of the acquaintanceship between the lieutenant and Shirley Kaminski. The testimony of Gold-stein tends to - prove that, during the interval between the above meeting and the raid the officer was a frequent visitor to the Dolphin Street dive; that he was intimate with the proprietress and other inmates of the place; that he sought and received a small loan from the woman, and, generally, protected the place from being raided by the city authorities) through the method of furnishing Goldstein with advance information of complaints made to the police department against the Kaminski house, as and when these complaints were turned over to inferior officers of the force for investigation, and conveying. to Goldstein the nature of the reports of the latter officers on the results of their investigations.

The witness also testified to intimacies between the lieutenant and Florence Reed, who conducted the same type of place as did Shirley Kaminski; that, after some difficulty between the officer and the Reed woman, he arranged a conference between them, at which it was agreed that the latter could continue to operate a house of prostitution; and that later the Reed woman moved to a Bolton Street address, where she engaged in the conduct of the same nefarious practice. To the same effect the witness interviewed the officer on behalf of Betty Byrd, and obtained his tacit approval that the latter conduct a similar place of resort on Linden Avenue. The witness gave testimony tending to prove that Hitzelberger received from him, on behalf of Shirley ¹⁵⁷ Kaminski, the gift of some shirts on one occasion, and three bottles of wine during the Christmas period of 1936, and that, within the year preceding the trial, the witness gave the officer some twenty year old cognac brandy. That Florence Reed gave the witness fifteen dollars to spend on a wedding present for, presumably, the lieutenant’s daughter, which the lieutenant refused to accept, and which the witness kept on account of an indebtedness of thirty dollars due him from the officer.

According to this witness, he was the underworld contact man between the operators of the several houses of ill fame and the lieutenant in charge of the police district in which they were severally located. This testimony is somewhat corroborated by the subsequent testimony of the defendant himself, who admitted a long and intimate acquaintanceship with Goldstein, and justified his close relationship for the reason that through such contact he obtained leads to the solution of various crimes. It is unnecessary to state that the officer denied categorically the gist of Goldstein’s testimony, although he admitted that he visited the several places on various occasions, allegedly for the purpose of justifying suspicions which he entertained against the resorts, based on anonymous complaints to his department, which suspicions were not verified, in his opinion, to the extent of warranting arrests. Goldstein’s narrative of the various contacts and transactions above set forth was corroborated, on the whole, by the testimony of the three women who conducted the houses, and by at least two other inmates of the places.

It further appears from the record that all three of the houses of prostitution continued to operate from August 6th, 1936, to May 15th, 1937, the date of the federal raid. Testimony was further adduced by the State, through the production of one of the federal agents who made the vice investigations which culminated in the raids of May 15th, 1937, and the subsequent prosecution herein-before indicated, to the effect that in the course of the investigations he tapped the telephone wire connected ¹⁵⁸ with the Dolphin Street house, over which he intercepted communications between Hitzelberger and Goldstein on one occasion, the Kaminski woman and Hitzelberger on two occasions, and between the lieutenant and ■ another inmate of the Dolphin Street house, which communications were reduced to writing at the respective times at which they were intercepted, and kept by the investigator in the form of two volumes, in which other apparently similar data was contained. It was testified by the investigator that on June 4th or 5th, 1937, he interviewed the appellant and read to him each of the above communications; and, according to his testimony, the intercepted call from Goldstein to the lieutenant, relating to the gift of brandy by the former to the latter, does not seem to have been admitted or denied on that occasion. The next call reveals the communication between the Kaminski woman and the officer with reference to an apparent money transaction between the parties, and to a proposed later visit by the lieutenant to the Kaminski house.

That conversation, the investigator stated, was read to the lieutenant, who explained that the loan did not concern him personally, but that he, the officer, had sought the loan at the request of Goldstein, and promised to see that it was repaid to Shirley Kaminski in event Goldstein failed to return it. The third intercepted message appears to have been a call from Hitzelberger to Shirley Kaminski, in which he stated his inability to ,get to see her at that time, but inquired about some inmate of the house, and, upon invitation from Shirley, he stated he would call at the house later on. This conversation, according to the witness, was admitted by the lieutenant, with the explanation that it was intended as a jest. The next intercepted call related to a conversation between the lieutenant and an inmate of the house, in which the lieutenant was seeking to get in touch with Goldstein, and directed that the latter call him 'as soon as he could, on a matter which was indicated by Hitzelberger as being important.

According to the investigator, the lieutenant stated that he remem ¹⁵⁹ bered making the call. Testimony of the investigator, with reference to the several readings of the intercepted telephone communications above mentioned to Hitzelberger, was substantially corroborated by a special agent of the federal government who was present at the interview between the investigator and the appellant. Testifying in his own behalf as to the telephone communications above mentioned, Hitzelberger admitted the interview with the investigator, stating that Goldstein had advised him that the Kaminski woman had won $285 at the races, and that he, Goldstein, wanted to borrow $100 from her. He further admitted that Goldstein told the woman he would pay the lieutenant the amount of the loan by the first of May, and to call him up, which she did, and that he told her to “let me know if he doesn’t, and I won’t let her lose it.” He further stated that one Willie Jones came to see him, stating that the woman could not loan the $100 but would loan $60; whereupon Hitzelberger stated: “It doesn’t make any difference how much you lend him, but if he doesn’t make good, I will stand for it.” He does not appear to have been asked with regard to any of the other alleged telephone communications in his direct examination, except as to the one with reference to calling to see an inmate of the house, when he stated that he did not have the conversation; but on cross-examination admitted many calls to the house occupied by Goldstein and Shirley Kaminski, explaining that they were for the purpose of getting in touch with Goldstein in order to secure information as to other crimes.

The remaining testimony introduced on behalf of the defendant was that of various officers or men connected with the police department, tending to show their respective investigations or acts of surveillance in connection with the houses which were raided, and apparently in connection with another house of ill fame. Some of these investigations or observations were made upon the initiative of the witnesses themselves or at the direction of officers in the police department other than Hitzelberger, while others were ¹⁶⁰ made at the instance and under the direction of Hitzelberger. At the trial below sixty-nine exceptions were reserved by the appellant to rulings on evidence. Nineteen of these exceptions appear to have been abandoned by the appellant in his brief and in the oral argument before this court; and, as to the remaining exceptions, counsel for the appellant has carefully grouped them in connection with the several questions raised in his argument, as follows: “Exceptions 5, 6, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30: Did the trial court err in the admission of testimony relating to incidents and occurrences in 1934 or 1935 at Florence Reed’s apartment, 1912 Bolton Street? “Exceptions 10, 11, 12, 34: Did the trial court err in admitting evidence of gifts made to the defendant? “Exceptions .38, 38a, 39, 40, 41, 42, 43, 44, 45, 46: Did the trial court err in admitting evidence of telephone conversations intercepted by wire tapping? “Exceptions 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, i63, 64, 65, 66, 67, 68, 69: Did the trial court err in refusing to permit the defendant to prove the investigations made by police officers of the houses of prostitution * * * and the results thereof? “Exceptions 13, 17, 19: Did the trial court err in admitting the evidence embraced in these exceptions?” At common law malfeasance is a misdemeanor, and under the laws of this state crimes of this class must be prosecuted within the period of one year from the date of commission.

World v. State, 50 Md. 49 ; Curry v. State, 117 Md. 587 , 83 A. 1030 ; State v. Kiefer, 90 Md. 165 , 44 A. 1043 ; Archer v. State, 145 Md. 128 , 125 A. 744, 748 ; Code, art. 57, sec. 11. The objections to evidence raised by the appellant in the first group of exceptions above mentioned are based upon the theory that evidence relating to the nature and conduct of the houses of prostitution involved in this case, antedating the period of one year from the date of the presentment, is inadmissible. As has been indicated, the house conducted by Shirley ¹⁶¹ Kaminski is shown by the record to have been operated by her for a period of at least two and a half years prior to the date of prosecution; and the record also shows that the houses of prostitution conducted by Florence Reed and Betty Byrd were operated for at least the same length of time before the date of prosecution. The contention of the appellant is that all evidence, other than that of transactions within one year from the date of prosecution, with reference to the defendant in connection with these houses, if any, should be entirely excluded from consideration, and that there was error in admitting any such evidence.

It is undoubtedly true, as a general rule, that when one is put upon trial for an offense, he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and that, under ordinary circumstances, proof of his guilt of another offense should not be admitted. In other words, evidence of collateral facts, or of those which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute, should be excluded, for the reason that such evidence tends to divert the minds of the jury from the real point in issue, and may arouse their prejudices. In addition to these reasons for the rule, the defendant, through the charges in the indictment, ordinarily would have no notice as to what evidence would develop with reference to such collateral offenses. When, however, the proof shows such connection between the different transactions as raises a fair inference of a common motive in each, evidence is admissible on other general grounds, and it is no objection that it discloses other offenses.

The real test of admissibility is the connection of the fact proved with the offense charged, as evidence which has a natural tendency to establish the fact at issue should be admitted. Curry v. State, supra; Wentz v. State, 159 Md. 161 , 150 A. 278 ; Lamb v. State, 66 Md. 285 , 7 A. 399 ; McAllister v. State, 140 Md. 647 , 118 A. 147 ; 1 Wharton’s Crim. Evid. (11th Ed.) sec. 345.

We are not unmindful that the above statement of the ¹⁶² law is applicable to crimes in general, and that, as stated, it leaves out of consideration the distinction between those crimes to which the principle of limitations does not apply, and to those to which it does apply. In the instant case testimony was adduced tending to prove that Shirley Kaminski operated a house of prostitution, with the assent or approval of the appellant, for at least two years prior to the date of trial; and the trial court, evidently bearing in mind the period of limitations controlling the crime with which the appellant was charged, promptly stated that the evidence was admitted subject to exception, unless it was subsequently shown that the house continued to be operated by the Kaminski woman, pursuant to the alleged arrangement with the appellant, to a date within one year preceding the date of the prosecution, and that, upon the failure of the State to develop such facts, the entire evidence would be stricken from the record. In the case of Archer v. State, supra, the defendants were charged with the crime of conspiracy, which under the law of this State is also a misdemeanor. The theory of the State in that case was that the conspiracy charged as beginning on August 11th, 1917, and January 1st, 1921, was a continuing conspiracy and was kept alive as one continuous offense.

In that case the State failed to establish the continuing offense; but in the course of the trial evidence was admitted subject to exception, as was done in the instant case; and this court, in passing upon the ruling of the trial court in so admitting evidence, said: “It was proper to admit, subject to