McGee v. State

²⁴¹ PER CIuriam. The appellant, William McGee, was tried and convicted by the Criminal Court of Baltimore, sitting without a jury;/ of violation of the lottery laws and of the offense of resisting arrest. He contends that the evidence was legally insufficient to sustain his convictions. On January 25, 1966, Sergeant Shanahan and Officers Schneider and Elseroad of the rackets division of the Baltimore City Police Department, armed with a search warrant, went to the appellant’s home at 1207 Winston Avenue.

After the appellant was accosted outside, as he alighted from his car, the search warrant was shown to him. The officers then accompanied him into his home. Officer Schneider proceeded to search him and took from his rear pocket two slips of paper which he examined and handed to Sergeant Shanahan. Sergeant Shanahan looked at the slips and showed them to the appellant.

The appellant snatched the slips from the Sergeant, put them in his mouth and proceeded to eat them. The officers struggled with him in an attempt to recover the evidence. According to the testimony of Sergeant Shanahan, the appellant “continued to flail his arms and push us away.” The officers decided to desist in their attempt for fear of hurting the appellant “since he appeared to be an elderly gentleman.” The only part of the slips retrieved was a small piece of paper, with no notations on it, which the appellant later spit out. After the incident described, a search was made of the house but no other evidence of violations of the lottery laws was found.

The indictment of the appellant for resisting arrest alleged that while Sergeant Shanahan was in the act of arresting him, he “did then and there unlawfully, resist an arrest * * * by pulling, pushing and laying hold of the said officer * * Resisting arrest is a common law offense. Preston v. Warden, 225 Md. 628, 629 . The appellant contends, however, that there was no arrest in process when the struggle for the possession of the slips of paper was taking place and that the actual arrest presumably occurred thereafter. The case of People v. Margelis, 217 Mich. 423 , 186 N. W. 488 , was cited in support of this contention.

That case dealt with.the issue of lawful arrest ²⁴² on a charge of unlawful possession of whiskey. The officers, without the authority of a warrant, seized the defendant for the sole purpose of securing as evidence the whiskey which they suspected was on his person. The situation here is not analogous. One of the accepted definitions of the word “arrest” is “the taking, seizing or