Robinson v. State

Bruñe, C. J., delivered the opinion of the Court.. The defendant, Robinson, was indicted separately (a) for ⁵⁰⁵ several substantive offenses under the lottery laws and (b) for conspiracy to violate these laws. Under the substantive offense indictment he was found not guilty on a charge of selling lottery tickets, but he was found guilty of keeping a “place”— an automobile 1 — for the sale of lottery tickets, of permitting an automobile to be used as a place 1 for such sale, of possession of lottery tickets and of possession of lottery paraphernalia. He was also charged and found guilty as a second offender on the last two charges.

The conspiracy indictment, on which he was also found guilty, charged him with conspiracy with one Charles George Vain, and other persons unknown, to violate the lottery laws. He was tried under both indictments together and was sentenced to five years’ imprisonment under the first indictment and to one year under the second, the sentences to run concurrently. He appeals. By the direction of this Court the case has been reargued as to matters pertaining mainly to the conspiracy charge.

Under the first indictment, the question is whether the arrest of the defendant and the subsequent search of his automobile were lawful. Under the second indictment, the defendant claims that the evidence was insufficient to warrant his conviction (a) because of the so called “concert of action rule” (sometimes known as “Wharton’s rule”), and (b) because (even if the agreement of a writer and player could constitute a conspiracy), necessary corroboration of the testimony of accomplices was lacking. There was evidence showing the following: A plainclothes police officer went to a gasoline station in Baltimore City operated by Charles G. Vain at about 9:10 A.AI. on October 18, 1960, and asked Vain if he would accept numbers play that day. Vain declined to do so, but said that a man who worked around the station and drove a truck would.

The officer left and informed his superior, a police sergeant, of the conversation. The sergeant, the plainclothes officer and four other ⁵⁰⁶ detective officers then went to the station, saw some lottery numbers on a piece of cardboard and arrested Vain. Vain told them he was a player, not a writer, that he played numbers with Robinson, the defendant, and that Robinson came to the station several times a week and picked up his numbers. He said that he had a way of contacting Robinson by telephone.

A^ain then tried in the presence of the officers to call Robinson by telephone and was told by whoever answered the telephone that he was out. The sergeant and three of the officers left, but two officers, Tracey and Todd, remained at the station with Vain. They and Vain made out some fictitious lottery numbers to be used by Vain to trap Robinson, if he should appear. Robinson soon drove up in his car, Vain went out to the pumps to service the car and the two officers hid in the men’s toilet.

Robinson and Vain came into the station office together and went to Vain’s desk, which was in front of the door to the toilet and a few feet from it. The door was open a crack and the officers saw and heard what then happened. Robinson asked if anyone was in the toilet and Vain told him it was occupied. Vain said he would get the money he owed Robinson from the last week and asked how much it was.

Robinson replied that it was $69.00 and said he would get it the next week. Vain then offered Robinson the prepared numbers and $7.00 to pay for playing them. Robinson took the paper and the money for an instant, glanced at them, and either threw them on the desk or handed them back, saying either “Charlie, I don’t take numbers on the street,” or “I told you I never take that stuff in the street.” At this point two strangers entered the filling station, Robinson ran out, got in his car and drove off rapidly. The police officers ran out after him, one of them got in his own car and set off in pursuit of Robinson and caught him after a chase of about a mile through city traffic.

The officer then arrested the defendant; and after the defendant had parked and locked his car, the officer took him back to the service station where the sergeant and two other officers joined them. The sergeant told the defendant he was under arrest for ⁵⁰⁷ lottery. He said that he did not have a warrant for his arrest and asked permission to search the defendant’s car. The defendant first gave and later retracted such permission before they had even gone to the car.

Robinson, to avoid having it towed in at his expense, agreed to and did drive it, with police officers in the car with him and others following, to the Western Police Station. The officers made two unsuccessful attempts to take the defendant’s keys and unlock the glove compartment. They then took him into the police station, made him take everything out of his pockets, took his car keys, and used them to unlock the glove compartment. In it they found “a considerable amount of alleged lottery” (to quote from the appellant’s statement of facts, which was accepted by the State).

The defendant at no time confessed guilt, but on the contrary denied it. The first question is whether the arrest of the defendant was lawful. It is settled in this State that a peace officer may arrest without a warrant a person who commits a misdemean- or in his presence. See Silverstein v. State, 176 Md. 533 , 6 A. 2d 465 ; Wanzer v. State, 202 Md. 601, 609 , 97 A. 2d 914 ; Davids v. State, 208 Md. 377 , 118 A. 2d 636 ; and Childress v. State, 227 Md. 41, 43, 175 A. 2d 18 ; to cite only a few of the cases so holding.

As is stated in Wanzer , “[t]he term ‘presence’ is a word of art, denoting that * * * the commission of a misdemeanor is perceptible to the officer’s senses, whether they be visual, auditory or olfactory.” And in Davids v. State, supra, 208 Md. at 382-83 , this court said: “It is stated in general terms that a crime is committed in the presence of an officer where his senses afford him knowledge that such is the fact. * * * Where some evidence of the commission of a misdemeanor reaches an officer through his senses, and it is augmented by other strongly persuasive facts in his possession, all of which is sufficient to convey virtual knowledge to any normal mind that the misdemeanor is then being committed, he may act upon such information as being tantamount to actual knowledge that the misdemeanor is being committed.” In the instant case the officers had reason to believe from what Vain had told them that the defendant had been and still ⁵⁰⁸ was in the lottery business and that he used his automobile in the course of it to visit Vain to pick up numbers and to settle or collect for numbers telephoned in by Vain or by others for him. The State argues from this and from what the officers saw and heard at the filling station that the officers had reasonable cause to believe that a misdemeanor was being committed in their presence and hence were entitled to arrest the defendant. The question immediately arises: what misdemeanor did they perceive being committed in their presence? The State contends that there was enough to justify an arrest without a warrant for each of the substantive offenses of which the defendant was convicted.

The State now contends (though we did not understand it to do so at the time of the original argument) that there was enough to justify an arrest without a warrant on the conspiracy charge. It is not disputed that the alleged conspiracy would constitute a misdemeanor. With regard to the substantive offenses charged, we think it clear as did the trial judge, that there was no sale of lottery at or immediately prior to the arrest. Hence, that charge would not support a claim of a misdemeanor committed in the presence of officers.

The other substantive offenses charged, and those of which the defendant was found guilty, involved (a) the use of his automobile for the sale of lottery tickets and (b) possession of lottery tickets and other lottery paraphernalia. As to all of these charges, it is doubtless true that when the defendant drove up to the service station the lottery tickets and other paraphernalia were in the glove compartment of his car. It is equally true that the officers did not and could not see them there, nor was there any statement by the defendant admitting or indicating that they were there. Therefore, insofar as the charges based on possession are concerned, we also think the evidence was insufficient to show the commission of a misdemeanor in the presence of the officers.

We further think it was insufficient to show that the automobile was being used or was being permitted to be used in their presence for the sale of lottery. The officers had information to the effect that the defendant used his car in the course of his lottery business in making pay-offs or collections and at times ⁵⁰⁹ of picking up numbers, but we do not think that what the officers saw and heard when the defendant came to the idling station on this occasion was enough, even with their prior information, under the test stated in the Davids case, to show that the defendant’s car was then being used, or was being permitted to be used, in the officers’ presence, for the sale of lottery. See also, Silverstein v. State, supra; Walker v. State, 195 Md. 412 , 73 A. 2d 508 ; and Wanzer v. State, supra. The facts here fall short of those in Allen v. State, 229 Md. 253, 182 A. 2d 832 , where the arresting officer had actually seen before making the arrest, what, from his experience, he reasonably believed to be heroin in the possession of the defendant.

The instant case also differs from Lane v. State, 226 Md. 81, 172 A. 2d 400 , in that here there was no statutory authority for an arrest upon probable cause for the officers to believe that a misdemeanor was being committed in their presence. In the Dane case Federal narcotic agents made an arrest without a warrant, in accordance with a Federal statute authorizing them to make such an arrest where they had reasonable grounds to believe that a violation of the Federal narcotics laws was being committed in their presence. The arrest was held lawful under that statute and the fruits of a search incidental to the arrest were accordingly held admissible in evidence. With regard to evidence of the offense of conspiracy committed in the presence of the officers, the facts also fall somewhat short, we think, of the facts in Romans v. State, 178 Md. 588 , 16 A. 2d 642 , cert. den. 312 U. S. 695 .

There the police had been informed of a conspiracy to cause a State’s witness to disappear before a trial and had been informed of a meeting to be held between the defendant and an intermediary at which plans were to be perfected. Pursuant to prior arrangement, the arresting officer watched the intermediary at a street corner, saw the defendant drive up to him and speak with him briefly, saw the intermediary walk away a few feet and was told by the latter that the man who had just driven off was the man whom the intermediary was to meet, and that this other man was to return to pick up the intermediary, so as not ⁵¹⁰ to cause suspicion. The officer then took the intermediary with him and pursued, overtook and arrested the defendant. The arrest was held lawful.

The officer saw the defendant engaged in an act which he had reasonable ground to believe was in furtherance of a conspiracy to obstruct justice and was in itself an effort to obstruct justice. Cf. Marron v. United States, 275 U. S. 192, in which papers seized upon the arrest, without a warrant, of a co-conspirator and co-defendant, were held admissible against the defendant, Marrón, where his co-defendant had been engaged in the presence of the arresting officers in an act in furtherance of the conspiracy, which act itself constituted an offense. In the instant case the officers did not see the defendant engaged in an overt act in furtherance of the conspiracy.

Whatever his reasons therefor may have been, he postponed accepting a proffered payment on past transactions and rejected new numbers and current payment for them. Robinson’s flight may have been evidence of guilt (Tasco v. State, 223 Md. 503 , 165 A. 2d 456 , cert. den. 365 U. S. 885 ; Price v. State, 227 Md. 28, 175 A. 2d 11 ); but it does not point to evidence of guilt of any particular offense which the officers had reason to believe, from the evidence of any of their senses, had been or was being committed in their presence. An arrest without a warrant for a past misdemeanor not committed in the presence of an officer, which the person arrested has not confessed or admitted, is invalid, Le Faivre v. State, 208 Md. 52, at 71 (on reargument), 116 A. 2d 368 , 118 A. 2d 639 (on reargument). See also Kauffman, Law of arrest in Maryland, 5 Md. L. Rev. 125 , 162-66, and cases there cited, particularly Blager v. State, 162 Md. 664 , 161 A. 1 .

We thus conclude that the arrest without a warrant in this case was not lawful, whether its justification is sought to be rested upon information obtained by the officers coupled with what they saw and heard (a) relating to the alleged substantive offenses or (b) relating to the alleged conspiracy. The State makes no contention that the search of the car was lawful if the arrest was not and has abandoned any claim based upon consent of the defendant, a matter as to which ⁵¹¹ the trial court decided against the State. Since the arrest was not lawful, neither was the search, and the lottery tickets and paraphernalia found by the search should not have been admitted in evidence, and the conviction on the substantive offense indictment must be reversed. Before leaving this phase of the case, we may observe that the only basis upon which the State has sought to uphold the conviction under the substantive offense indictment is for offenses committed on the day of the arrest, and not for any offense which may have been committed prior to the date of the arrest but within the period of limitations.

We decide the case as it has been presented to us. When we turn to the conspiracy charge, the case comes before us on a record which is not so complete and explicit as we might wish. Though the indictment is sufficient under Hurwitz v. State, 200 Md. 578 , 92 A. 2d 575 ; McGuire v. State, 200 Md. 601 , 92 A. 2d 582 , cert. den. 344 U. S. 928 ; and Scarlett v. State, 201 Md. 310 , 93 A. 2d 753 , cert. den. 345 U. S. 955 ; it is not highly informative. The defendant sought further information with regard to the charge of conspiracy through an interrogatory, which the State claimed it was not obligated to answer.

As a result of a discussion immediately prior to the trial the State furnished information which apparently satisfied this demand of the defendant. The Assistant State’s Attorney said that the State’s “position is that the co-conspirators are players and not writers.” He then specifically stated that this was true as to Charles G. Vain, the defendant’s named co-conspirator (referred to below for brevity as “Vain, Sr.”) ; but as to Charles J. Vain (son of Charles G., and referred to below, for brevity, as “Vain, Jr.”) he went on to say in part: “We do not stipulate that he is engaged in lottery in any