Williams v. State

Orth, J., delivered the opinion of the Court. James Williams and Leroy Williams, the appellants, and William Edward Ward were jointly indicted, charged with, 1st count: selling a lottery ticket (Md. Code, Art. 27, § 356) ; 2nd count: keeping a certain place, “to wit, a room located at 2243-2245 Prentiss Place for the purpose of selling lottery tickets” (§ 360) ; 3rd count: knowingly permitting a certain room located at the same address “of which they were the owners” to be used as a place for selling lottery tickets (§ 361) ; and 4th count: possession of lottery slips (§ 362). The appellants were jointly tried at a court trial in the Criminal Court of Baltimore, each was found guilty under the 3rd and 4th counts and each was sentenced generally to one year under the jurisdiction of the Department of Correctional Services and fined $1000 and costs. As to James Williams the prison sentence and fine were consecutive.

As to Leroy Williams the prison sentence was suspended upon payment of fine and costs. 1 The questions presented on appeal go to the sufficiency of the evidence, each appellant claiming that the evidence did not prove the charges of which he was convicted. THE FACTS Upon application of Officer Edward Wisniewski of the Baltimore City Police Department, Vice Section, conceded by the defense to be an expert on lottery operations, a ⁸ search and seizure warrant was issued. The warrant commanded any police officer of Baltimore City to search the “premises 2243-45 Prentiss Place (a tavern known as Lucky Tavern); a “colored male 45-50 years, 5' 10", 165 lbs., wearing glasses” and “a 1960 blue and white Chevrolet Station Wagon bearing Maryland license EX4855 (old issue) ; to seize lottery slips and related gambling paraphernalia found; and, upon execution of the warrant, to arrest persons found “then and there engaged in the commission of a crime.” The warrant was admitted in evidence without objection, its validity being expressly conceded. Wisniewski testified that he and two other officers executed the warrant on 12 March 1968 about 2:00 p.m., displaying it to the barmaid, Eunice Bernice Lassiter, and searched the premises.

Seven “non-conventional lottery slips showing 190 numbers and $58.35 in play” were found in a towel dispenser in the kitchen on the first floor. On a porch “right outside the kitchen” thirteen lottery slips were found underneath a steel grate and twenty-six slips, showing 866 numbers for $312.75 in play underneath a television cabinet. In the rear yard two slips containing fifty numbers for $12.05 in play were found in a trash can. The slips were admitted in evidence without objection.

The police determined that the licensees were not on the premises. The State did not produce the license, stating that the defense had agreed to “stipulate” as to it. Wisniewski said he saw the license and it read, “Premises 2243-2245 Prentiss, t/a Lucky’s Tavern, LBD 7-653 in the name of James and Leroy Williams and William E. Ward.” The police telephoned one of the licensees, and gave the other two “a verbal warning to be in court the next day as they could be put on the books and charged with lottery.” They did not appear at the hearing and “we swore warrants out for their arrest.” Defense counsel conceded that the appellants were two of the licensees. On cross-examination the witness said that the man described in the warrant was Henry Jackson, who was also arrested. 2 ⁹ Wisniewski said he had never seen the appellants until the day of trial although he had made all the observations set forth in the application for the warrant.

The State rested and motion for judgment of acquittal was made and denied. Leroy Williams testified that he was one of the three licensees of the tavern. He, his brother James, and Ward were partners in the business. He was otherwise employed, having worked at Bethlehem Steel for 13 years and was on the daylight shift.

He could only be around the tavern at night, his brother, spending the most time at the tavern. His brother was also otherwise employed by the Knight-Hale Freight Line, working different shifts, “all day, but sometimes earlier, sometimes late.” The kitchen on the first floor was not used, although it had formerly been used about a year ago in connection with the nightclub which, at one time had a dining room attached. The towel dispenser was not “in use by anyone at the time the police came in.” There was one full-time barmaid and “I think there was one part time.” He had never seen Jackson until he went to the police station. He had not given Jackson “any authority to do anything at all, directly or indirectly,” and to his knowledge neither Ward nor James Williams “had any dealings of any kind with Jackson.” He was not “aware of any sort of lottery operation going on” in the tavern, was in no way “responsible for any of this lottery found in” the place, learned from his brother that the police were looking for him and then went to the police station.

On cross-examination it was elicited that James Williams lived on the second floor of the premises. 3 In January, February and March of 1968 Leroy Williams went to the tavern two or three times a week, staying “sometimes two, three, four hours.” He did not go to the ¹⁰ second floor. He did not “work actively” there, not serving drinks or taking any active part in the management. He stayed in the main part of the bar and “sit” — “sometimes I might have a drink or a couple of drinks,” talking to the people he knew. He had seen “a scratch sheet” which the barmaid used to keep the tab when she served more than one or two drinks to a customer but had never seen it used “to keep numbers on, other than numbers for drinks, by the waitress.

The kitchen was not used to serve food and was closed to the public. He did not know who had access to the kitchen when he was not on the premises, but when there “me and my brother and, well, the barmaid might have occasion to go in there,” but not the general public. The kitchen had been rented out around the first of the year to persons whose names he did not remember who “were serving the dining room food.” He did not know exactly when the dining room closed. He said that he had never been convicted of a crime.

No other evidence was offered. In rendering the verdicts the court said: “It seems quite clear to me that the case is very strong as to James Williams, who was one of the licensees who lives over the tavern where these operations took place. The case isn’t quite as strong as to Leroy Williams as it is to James Williams. But, it still is difficult for me to understand how one of the licensees who is there several times a week, hours at a time, could have been completely ignorant of a rather substantial lottery operation that is apparently going on constantly under his eye.

So, the verdict, I think, as to both defendants should be and is guilty under the third and fourth counts.” THE CONVICTIONS UNDER THE THIRD COUNT The third count of the indictment charged the crime proscribed by Md. Code, Art. 27, § 361. It provides in relevant part, for the indictment and, upon conviction, ¹¹ for the sentence of, “[t]he owner of any house or office who shall permit the same to be used as a place for selling lottery tickets * * * Any person who shall know that his house or office is used for such purpose shall be considered as permitting the same.” The count charged that the appellants “unlawfully and knowingly did permit a certain room located at 2243-2245 Prentiss Place of which they were the owners, then and there to be used as a place for selling lottery tickets.” The evidence did not show that the appellants were the owners of the house in which the tavern was located, or under what authority they occupied the premises, 4 only that they were the licensees under a B-D-7 license of the business conducted therein. We are aware that § 368 directs that the courts shall construe the provisions relating to lotteries liberally, 5 but we cannot find that the legislative intent was that the holders of a B-D-7 license which authorizes them to keep for sale and sell all alcoholic beverages at retail at the place therein described, for consumption on the premises or elsewhere during certain stated times (Md. Code, Art. 2B, § 29A) are the owners, within the meaning of § 361, of the house within which the business is authorized to be conducted under the license. 6 We think it obvious that the “owner of any house or office” within ¹² the meaning of Art. 27, § 361 includes a person vested with title of property in fee or has title to the leasehold interest under a ninety-nine year lease. See Brown v. State, 200 Md. 211 , in which the defendant admitted he was the owner of the premises.

The Court of Appeals has construed “house or office” to include an automobile. In Moore v. State, 199 Md. 676 , the judgment was affirmed where the Court found that there was abundant testimony to support a finding that the defendant was “still the owner of the car.” See Robinson v. State, 229 Md. 503 . And in Bland v. State, 197 Md. 546 , in which a conviction of a charge of permitting an apartment of which the defendant was the owner to be used as a place for selling lottery tickets was affirmed, the Court said, at 549, “It is obvious that, if the search warrant was legal, the evidence was ample to sustain the conviction, because it was undisputed that appellant and his wife were the lessees and occupants of the second floor apartment.” 7 So it would appear that interest in property as a lessee is sufficient ownership. But we do not believe that mere occupancy of or presence in a house or office satisfies the requirement of ownership; we think there must be some proprietary interest.

See Scarborough v. State, 3 Md. App. 208, 218 . In Propst, May and May v. State, 5 Md. App. 36 , the judgment was affirmed on a charge under § 361 as to Ruth Virginia May where it was shown that she resided in the apartment where the lottery slips were found, and that a receipt for the apartment rent had been issued by the landlord to her husband. In the present case there was no proof that the appellants had a proprietary interest in that part of the premises in which the lottery slips were found as legal owners, lessees or otherwise. James Williams resided on the second floor, but that portion of the premises was not involved in the crime and in any event there was no showing under what authority he resided there.

As ¹³ ownership is a necessary element of the charge under the third count, and as there was no sufficient proof to establish that element, the judgments under the third count must be reversed. 8 In view of our holding we do not reach the question whether the appellants knowingly permitted the premises to be used to sell lottery tickets. However, proof of direct participation of the appellants in the lottery was not necessary to prove that element. All that need be shown was scienter, or in other words, that they were aware of, or permitted the unlawful use. “On questions of scienter reasons for disbelieving evidence denying scienter may also justify finding scienter”, an exception to the general rule that “disbelieving evidence is not the same thing as finding evidence to the contrary.” Brown v. State, supra, at 215; Moore v. State, supra, at 681; Hayette v. State, 199 Md. 140, 145 . THE CONVICTIONS UNDER THE FOURTH COUNT The fourth count charged that crime under Md. Code, Art. 27, § 362 proscribing the possession of lottery slips.

In 1897, the Court of Appeals said in upholding the validity of the statute in Ford v. State, 85 Md. 465 : “The language of this section is too plain to admit of any discussion as to its meaning.” at 474. The statute makes unlawful the mere possession of a lottery slip irrespective of the purpose for which it may be held. 9 at 480. The mere possession of a lottery slip is