Lee v. State

Marbury, C. J., delivered the opinion of the Court. This is an appeal from a judgment of the Criminal Court of Baltimore which, sitting without a jury, had found the appellant guilty on the fifth count of each of three indictments charging him with the unlawful possession of records and numbers drawn in a lottery on ³⁸⁶ three different days. He was fined $500.00 and costs in one case, $500.00 and costs in another “consecutive” with the first, and fined $1,000.00 and given six months in the Maryland House of Correction in the third. The questions presented are (1) whether there was error in admitting in evidence the search warrant under which the evidence was secured when the affidavit on which that warrant was predicated was not identified and was not offered or admitted in evidence; (2) whether the facts related in the affidavit and application constitute sufficient probable cause for the issuance of the warrant; and, (3) whether the evidence produced at the trial was sufficient to warrant a verdict of guilty in two of the cases, in one of which the offense was allegedly committed on January 1, 1951, and the other in which the offense was allegedly committed on January 8, 1951.

Before pleading, and before trial, appellant filed a motion to quash the search warrant, and this motion was denied. It is apparent, therefore, that the court which actually heard the evidence at the trial had already had before it the affidavit and the warrant, and had passed upon them. The affidavit itself is not evidence of anything. Its purpose is to enable the officer to get a search warrant in a suspected case, and thereby to secure evidence which can be properly presented at the trial.

The facts shown in the affidavit may not even be put in evidence at all in the case, and, in general, they are not so offered because they are required simply to be more than possibility, but not as much as proof. If the State had proof, it would not be necessary to have the search warrant. There is no requirement, therefore, that either the affidavit or the search warrant be put in evidence in a trial, unless the offered evidence is objected to on the ground that the affidavit is insufficient and the search warrant is bad. In such a case, when an objection is made that the evidence to be introduced was procured by an illegal search, the court has to rule upon the question whether the search was illegal, and therefore has to have before it the affidavit and the warrant. ³⁸⁷ In the case at bar, however, the court had these papers before it prior to the trial, and, therefore, it is nonsensical to say that there is any error in their not being formally offered in evidence during the trial.

On the second question, whether the affidavit is sufficient, the facts alleged are that two of the officers noted the appellant double-parked on Light Street, near Water Street, and noticed that the appellant entered Manny Berg’s Turf Bar between 11:30 and noon on January 2, 1951. When he came out of the bar, after being in there about ten minutes, he was putting a slip of white paper and a pencil and some bank notes in his pocket. As he was getting into his automobile, a man came out of the bar and called him by name. He stopped, the man went over to the automobile, and, after a short conversation, appellant opened the door of his car, took out a slip of white paper and a pencil and made some notations.

The man then took some bank notes from his pocket and counted them into appellant’s hand. As the man went back toward the bar, he was met by a second man who said: “Did you get it in?” The other man replied: “Yep”. The first man said: “970?” to which