Martini v. State

Markell, C. J., delivered the opinion of the Court. This is an appeal from judgment on conviction of selling and possessing lottery tickets and of other viola ⁶¹¹ tions of the lottery laws. The case was tried before the court without a jury. The question presented is whether a search warrant was invalid for inadequate description of appellant.

The search warrant directed diligent search of a described automobile and “the pockets of the clothing of all persons found in the said auto or who may enter the said auto, who may be found to be violating the lottery laws, for lottery books, lottery slips, lottery tissues, lottery adding machine ribbons, lottery syndicate cards, adding machines, and any other paraphernalia used in unlawful operation of a lottery, and the monies used to play thereon;” and seizure of “all evidence pertaining to any form of gambling, * * * and also the bodies” of a white man and a white woman, “the white man being about 25 yrs. of age” and arrest of “all persons found to be violating the lottery laws, who are actively engaged in the unlawful operation of conducting or playing lottery, or who may be found to have lottery paraphernalia in their possession * * Appellant admits that if the warrant had been limited to a search of the automobile, it would have been valid, but contends that the description of the “white man, about 25 yrs. of age” is inadequate and invalidates the warrant in toto. The officer who executed the search warrant testified that he saw the car described and stopped it; appellant was seated behind the wheel. “I observed he had a slip of paper in his hand, his right hand. I directed Martini to give me this slip of paper. He was crumpling it, * * * it was necessary for the four of us to take him out of the car bodily.

From his hand 1 wrenched this slip which is a lottery adding machine tape, indicating Leo as being a writer, the play amounting to $90.75.” The slip of paper in appellant’s hand “appeared to be a lottery slip.” When appellant was taken from the car there was found under him a brown paper bag, which contained packages, which in turn contained lottery slips — 60 lottery slips representing ten writing ⁶¹² stations and $541.28 of play, and $217.85 in cash. Appellant objected to admission in evidence of the adding machine tape taken from his hand and the contents of the bag on which he had been sitting. In a city of 1,000,000 inhabitants 15,000 or 20,000 (1/70 or 1/50) must be 25 years old. If half are men and 80% are white, 6000 .must be men 25 years old.

If “about 25” includes only 24, 25 or 26, there must be 18,000 persons who answer the description of “a white man, about 25 yrs. of age.” We find it unnecessary to decided whether “a white man, about 25 yrs. of age” describes appellant “with reasonable particularity”. The instant case is ruled by Saunders v. State, 199 Md. 568 , 87 A. 2d 618 . Assuming, without deciding, that appellant is not described with reasonable particularity in the warrant, both the lottery adding machine tape and the lottery paraphernalia in the bag on which appellant had been setting were lawfully seized in the search of the automobile, and were properly admitted in evidence. In the Saunders case we said, “His [the appellant’s] only contention is that the command to search ‘all persons