*1 685 well It own interests to consider. be inferred equally might not recoverable. that abandoned the amounts as they paid Another several subscribers defense advanced on behalf of en- that the would not assured corporation of the lines of its articles gage business authorized on com- incorporation except brokerage dealing mission. There was to this no contract or condition binding and it effect, is settled that understanding, such a collateral if even as a condition might regarded having imposed on the to' subscriptions stock, against would not be effective creditors of the v. Baltimore Overall corporation. Cantor Co., 121 Md. A. 1115. 65,
That no further call
required
corporation
order to fix
for the
liability
unpaid parts
subscriptions
on behalf of creditors
was settled
cases of
Crawford
Rohrer,
The decree will be affirmed as all defendants and appellants except him will be re- Nuttle, and Harry versed.
Decree as to all appellants except Harry affirmed
Nuttle, with costs to the as to appellees, reversed, Nuttle Harry costs to that appellant. MARYLAND.
JULIUS HEYWARD v. STATE OF Term, October 1931.] [No.
n *2 1st,
Decided February C. J., The cause before Bond, was argued Pattison, JJ. Sloan, Uenee, Oeeutt, Paeke, Adkins, Daniel O. Joseph Abram C. with wffiomwas Joseph, for brief, the appellant. Assistant, Anderson, General, G. C. A. whom Attorney Lane, Jr., General, were Wm. Preston B. Herbert Attorney O’Conor, Stale’s and William Baltimore Attorney City, *3 H. for the brief, Assistant Stale’s the Maynard, Attorney, State. the Court. delivered the of J., opinion
Pattison, Gorman, Julius the with one Heyward, appellant, Henry for was indicted the of of the Baltimore by City grand jury violation of the criminal pertain- of certain code provisions el of Code of to. article see. the ing lottery, seq., When case came Public General Laws of the Maryland. trial in court of that a severance for the criminal city, up in trials were had that and court. separate granted; in but this case counts, The indictment contained eleven in the fourth and fifth counts, we are interested upon: only was found a which the defendant Heyward guilty by jury.. in the fourth count was his charged pos- having he: the session not for of and lottery tickets, purpose procuring the evidence of the violation of of provisions furnishing any in fifth count with lotteries; of the law and the relating in “divers lists, and records books, slip® his having possession numbers in a divers of drawn and lottery; lists, slips books, books, lists., divers and records tickets; slips records of lottery had been and which was to received, of which have money tickets, from sale in been received of and lottery things the nature and which was things the divers thereof; by prom- numbers, character, ised and guaranteed particular would, tickets and certificates in a event, certain and upon the of in nature a certain of a happening the contingency or the holder receive lottery, entitle purchaser money, * * * and evidence of he so there property debt; at the time in had the said and records possession lists, books, slips in of numbers drawn and records slips lottery, books, lists, of of lists, and records lottery books, slips tickets, money which had been which have been re- was to received, .and from tickets, ceived of the things the sale thereof, nature it was promised things tickets numbers, characters, guaranteed particular would, event, a certain happen- certificates of a the nature certain of en- ing contingency, lottery, title holder to receive purchaser money, property evidence his possession of same for debt, having evidence purpose procuring furnishing- of the law violation provisions relating ”** * lotteries. Upon jury’s verdict of on the above guilty counts, defendant was sentenced court to fine $1,000, pay and be imprisoned the term of in the days sixty jail. city It is from that of the court that judgment appeal case taken.
The State, in support charges against brought placed the stand Edward Hit- defendant, Sergeant L. *4 who testified he was zelberger, from Northwestern the District, and result of that, certain in- complaints formation he, received him, several mornings prior 20th, to the May watched movements of in Heyward or in connection with respect on street; Brunt in May 20th, 1931, about eleven the he went to morning, Brunt A street. man walked in the he house in with w:alked him. behind Witness him, then walked to the back room there a man the were of Gorman name and two others. the (Henry Gorman) meantime'he had Officer rear at placed the and had told of the Bradley one down and let Officer in the which go Bradley house, .men he did. told Witness at the front door, Bradley stay waited they there for about a half he hour, knowing visited in always this house the were morning. While there, came waiting and witness Heyward placed there, under arrest and took him to.the station house. Witness sent him to the in station house and witness patrol wagon, got from permission to drive his car Heyward to> station there; house. On the car down he found a lot driving and books when slips on floor of lottery car, searched at the station turnkey Heyward house, he found on him, and .slips with which envelopes, money them, he had collected from around to the various sta- going pick-up was; tions. Witness there when the turnkey searching was him. the witness shown some Thereupon was forty fifty little the outside which he envelopes, on testified figures in some instances contained money.
The then offered evidence State papers found after arrest at house. upon Heyward his. the station An objection to admission of these evidence papers, was overruled. This constitutes first riding exception this, the admission of record though appears evidence^ as the second The first exception. was to the action of the court in refusing grant the defendant’s prayer petition, filed and heard before the commencement trial of the case its that the merits, and books asking papers, slips, found in defendant’s as well as car, slips papers him after his arrest at the station then house., in the State, possession returned defendant. witness then testified that had been working cases of this character about lottery eighteen months, and that within that time he had handled some six hundred eases. ** * He rvas then asked: “Will tell how a you please just ” based An lottery operated, upon your experience objec- this, tion made to overruled. question at the State, its request, defense, reframed and'the wit- question, ness was asked: “Will tell the you gentlemen the jury is; how just based operated upon your experience in such An to things?” objection question likewise *5 noted, and to this an was
overruled, ruling exception The witness in the record the third exception. appeal’s it is three numbers answered, “Well, played. then saying: or seven nine, We six nine, eight will take four three hundred to two one. three numbers. five pay Any They five win if you other up penny one. words; put you cent, from of ten dollars. The writer commission per gets cents and fifty which nets four dollars you winnings, some of cent., cent. He also- twenty-five per your gets some thirty-five.” them -andsome twenty-five pay twenty, ?” alike And asked: are all they court then “How, five sir. of them answer was: 'Some pay “Ho, hundred then —” one, hundred one and them six some p>ay said: witness; “Well, At this point interrupting out all I will strike I will not testimony. permit general Question: down that.” come on “Well, now, Sergeant, ?” There is operated and tell me how a my question “I replied: the court was an objection question this It will be seen that out think I shall rule that testimony.” answer was to- permitted the witness in the third exception but thereafter was operated, how a lottery as to the question involved that exception. answer the co-urt out struck us. not before the third exception Consequently, Heyward he had watched testified that witness also Brunt around for two- Heyward days; and Brunt at Laurens leave car street; parked he would house Brunt Street walk down and then Streets, did about in; block, Heyward half go about him. The that he watched two days o’clock each say if did “What, Heyward anything, when witness, asked, ?” “He- asked me arrest replied: under when placed come around there any he would up to pass more.” then offered the car were witness found
The books the court, them by examination -of after -and, evidence; books, these After the admission of admitted. course, an exception, you “I will grant said: the court Mr. books, Joseph.” Joseph Mr. of these admissibility *6 said : sir.” “Yes, And the books referred to were thereupon handed to the to be examined. As shown record, jury by the this constituted fifth exception.
The sixth taken of the was court exception ruling in that books used permitting the witness were in testify running' and, when asked what sort of he lottery, books, said: sheets.” describe And when asked to them “Triple a, more said: there is number them fully, “Well, he also a number in each the book. You will see given writer, it there if also look, and will (indicating), you you there each in form see and each one has that paper triple number. “Ques.: A serial number.” All Ans.: And right? corporation.” name court was asked to strike out the answer, last refusal to do so seventh upon was taken. exception
On the witness that he testified had cross-examination, no warrant to enter search house or to arrest Hey- ward.
Officer also the Northwestern Bradley, District, testified that he was with on March 20th at Sergeant Hitzelberger 1716 Brunt Street. in went to the rear and was lot He house man. a colored “"When I got there, Sergeant was in the where Gorman three Plitzelberger kitchen, * * * other men colored were at a seated were table. They seated there with front of them. lottery slips Sergeant then me front told to1 take the Plitzelberger door and to watch for man’ I did, and when ‘pick-up Heyward came in there arrested him and Gorman we rest of them, and took them station to the where house, Heyward was searched.” witness had watched Heyward prior and that went to Brunt Street. day 1716 They see him did not togo other place; after any he left there they him; lost he had machine. generally Witness was present when Hayward at searched the station house, and some envelopes were taken money off those him, that offered evidence.
Plie second as we have exception, said, was to the admis- sion in evidence of slips, envelopes money them, after searched when person Heyward
arrest at the house. The admission papers station of his legality evidence envelopes depended arrest. arrest has the to- right
It is a settled law an officer his view. committed within without warrant for crime and this is still the It bis so-at common to do1 duty law, Cain, & 31 A. law. Balto. O. R. Co. v. Md. Lemon, Md. Mitchell v. Md. 504; Roddy Finnegan, *7 in which the v. party Roddy Finnegan, supra, of Balti with of the ordinance violating City charged for the said: more, Stewart, Judge speaking ordinance, the the the act of violating “Finding parties arrest and de- not only justified making Roddy fhe but tention of the offenders for his hearing, duty required as his with- him to do' so, responsibility police officer, from other out a warrant obtaining! quarter. of a warrant,
“The in the delay procurement consequent to make escape have enabled the their parties might —such his would be unreasonable, narrow construction of duty * * * Balti- officers is unwarranted. (police utterly They the commission of the to more have City) power prevent to-arrest and detain offenders for without crime and hearing, * * * whether the offense, common warrant, by where the city, ordinances law, statute, police regulation, by it is their their to do- so. view, duty committed within Baltimore, Howard, 15 Altvater v. 376; Baltimore v. Md. Lemon, 34 Md. 31 Md. Mitchell 176.” . informa- In this case received the officers arrest making laws at tion relative to violation of lottery the supposed the home of Gorman. Street, receipt 1716 Brunt Upon a, the officer personal investigation. of this information, began Brunt on two of 1716 Street separate He visited vicinity ten fifteen he not saw to persons go successive only days; hands of the house with their come out papers into and each in the but he also saw on eleven o’clock morning, before he who testified defendant, the- was, of those occasions "his, loca- car to a drive without “a objection, man,” pick-up Street, Brunt from 1716 half tion on Laurens about a block house the said and there his car and walk Street, stop car and return Brunt in and come Street, go out, officer went On of the arrest, drive off. the morning a man immediately when he arrived there 1716 Brunt Street; him door entered the house, leaving partially ahead and went back him,' the officerfollowed behind open; house, saw Gorman, occupant, there kitchen, Ser- Officer accompanied three other Bradley with negroes. he went to Gorman’s but house; geant Hitzelberger one man, a colored rear where:he was admitted door, to whom house-, had in the whom those Hitzelberger in. testified had to let he directions given Bradley Bradley Hitzelberger he- the house found Sergeant upon entering men other colored kitchen, where Gorman and three- He was told at table then sitting operating lottery. front and watch out for to the door Hitzelberger go This, and when man, he did, Heyward “pick-up” Heyward. in the came in, charged participation upon being his, he- the- business admitted asked therein, guilt “to never come around there and would officer, pass up *8 lot- more.” in the where at such time a This was house any was, in which he was admitted being par- he tery operated, be Under these circumstances it well said ticipant. may the offense which he was at the time- arrested was com- mitted within the- and the arrest was law- view officer, It, hold made. we be far to- would, think, very fully going to under such circumstances the officer was required warrant, before making arrest, obtain thereby, pos- allow defendant make- our escape. opin- sibly, in the law cannot be so- and ineffective its impotent, ion opera- in think, The we committed no error tion. its ruling this exception. upon
The fourth fifth were to of the admission exceptions, in the- car books, found by slips papers, Sergeant after of The the arrest Hitzelberger Heyward. admissibility in books, of these evidence papers depended slips The search warrant. their seizure without a of .legality 1929, session, its January of at General Assembly Maryland is now which 194, known act, chapter following passed General Laws of Public 4A article 35 the Oode, section of of shall be misdemeanors of in the trial this State: “Ho evidence shall have been procured the same deemed admissible where seizure or search in of any illegal or through consequence by, the Declaration or search and seizure prohibited by of any in such cases be evidence nor shall State; of this Rights in or consequence admissible if through procured by, which would the admission of search and the effect of seizure, in a crim- himself against be to one evidence compel give inal case.” or evidence obtained of the above act,
Before the passage war without a with or search, secured virtue of an illegal by v. in state. Lawrence was admitted evidence rant, State, State, 155 Md. 96; 103 Md. 63 A. 17, Meisinger 141 A. 142 A. Richardson v. State (Md.), A. in trials inadmissible, The render effect of statute in consequence evidence misdemeanors, procured through in this case if Therefore, search or seizure. any illegal there was an search or seizure papers, illegal automobile of the defendant and books found slips Conse- were were not admissible evidence. procured, they ? Were so made, procured must quently, inquiry who his arrest the other defendant, parties therein in the the house participating house; was sent the station operated, patrol wagon Hit- at which him Sergeant time given by permission under officer, to drive his car to the station. zelberger took him the defendant, permission granted rightfully he, the station, To drive the automobile. possession when automobile, and, to enter course, required *9 the books he saw therefor, slips, search did without so, any well automobile. We floor of the may and the papers upon were not by, that these things “procured therefrom conclude seizure” search or illegal or consequence through some “A search implies within of the statute. meaning to observe It is not a search investigation. exploratory States, Fed. v. United which is Smith patent.” open States, v. Fed. United Boyd (2nd), Sergeant the witness, In the sixth and seventh exceptions, crimes on who had been Hitzelberger, engaged constantly this months or more, character for a of eighteen period allowed who covered some hundred cases, had six used, books were that, running a testify lottery, floor the defendant on the books, etc., upon dis- kind We lottery. were and character used in ear, State, cover in this 157 Md. no error ruling (Nolan no find A. we and for the reasons stated already 268); where the error in the court’s the first rulings exception, or refused, court to suppress Hayward, petition to have returned to the evidence found in the automobile his arrest. defendant’s at time of person After the rendition the verdicts of the which jury, by in- were found certain defendants counts guilty upon after the a new withdrawal of motions for dictments, if he before Gorman trial, sentence, asked passing had to> answered: case, about his which he say anything sir.” The court then asked: “How have been “Ho, long you that?” The three months.” was: “About operating reply The then said: them court swear both.” And “Well, they sworn. both court then asked: do> want Gorman, what “How, you How about circumstances sentence? say your touching A. months.” have been About long you three operating? At de»- this counsel for juncture proceedings, ?” fendant “If unusual stated: Honor isn’t that your please, “Isn’t A. court: unusual? man what To ask has not testified the court replied: “He testify.” .To a, both here for sen- trial. now up are They is not whether want to they anything I know say tence and want whether wish to they say pronounced, before sentence either or both. explanation, mitigation either anything them I not to make a to, not want advise state»- If do *10 n
meat. have a but it They to refuse to perfect right answer, is after trial for if always found customary defendants, to such guilty, make statements' as elect to- make they may in of sentence. It is in all mitigation violation at constitutional man is that to be provision says no to convict for compelled himself, these men have already been convicted by juries. there is a maximum How, penalty here and I am them to tell me simply giving opportunity whatever wish tell they to' of circumstances sur- may me their activities, the duration rounding and extent of them, all of which would be in that mitigation is punishment, all. if How, do not to it in wish they mitigate any way, information give anyme that would tend to mitigate it, they * * * have a to refuse to make perfect right- statement. any I am to to information be able simply trying so> get to' what extent it say be to' and what helpful ought * * * extent it him. may harmful advise Well, you clients.” your to this the counsel statement for reply defendant stated that better his client thought that not make should statement, asked that the answer the court’s question be stricken out. this the To court “I cannot replied: strike out the answer. That in.” is already
The court then sentenced Gorman to of $500, pay fine and to be imprisoned for jail He city thirty days. was abo-ut to sentence when he Heyward, interrupted was counsel. The defendant’s latter said that Heyward ticket in his guilty having lottery possession court replied: “He convicted on count 'the but he was also jury, a collector the route of lottery * * * tickets. I him the give opportunity giving grand the benefit of information with his jury regard route, if he wants to it. He is under do no to- do obligation so, There however. are sports some business who con- sider it beneath of a sporting sort dignity profession to * * * their welsh, The sen- might say, associates. you tence a thousand dollars fine and I days jail. is will sixty I them the same extended them on the give opportunity
m can It still give trial. is to them. open They clay tlie have as they if what information they grand jury, desire, Baltimore, business activities which they therewith with may whatever connection else if fairly familiar, then, truthfully fully ho That simply their sentences. jail out wipe given, may *11 trial.” them the of told on of what was day a repetition in interrogat- action The to court’s objected defendant and at the verdict him the rendition of under oath after ing unusual we was, think, the time sentence. This of imposing if this and But justification. question without legal affected from could be one which the judgment appealed ns to be on there was no before exception bring review, reviewed. in his oral
The both for the defendant contended counsel imposed in his brief the sentence and written that argument mem- because conditional uncertain. and invalid, bers of different views the question court entertain this contention, raised. A of the court with the majority agree a motion but a hold in the absence of that, further majority strike court’s out the sentence or an taken to the exception not tlie like the action, is, one, pre- question last preceding sented in reviewed. be shape will be affirmed. of the court therefore judgment costs.
Judgment affirmed, pay appellant follows: C. filed as J., separate opinion Bond, at- with the option That sentence of imprisonment, the accusation a means tached, was as of procuring imposed in the to have been others believed implicated sought against me the court’s announcement to follow from crime, seems to made of actually part of use purpose, objection And valid purpose. sentence accomplish for the I lies in use, see sentence, it, particular to the of not within one, is an ulterior purposes purpose function. or of the judicial those' court, before the proceeding A defendant conviction is to have meted out to a sentence to be served of the crime only expiation proved, of his debt it. not payment then, He is society liable to- course, sentence for failure to before possible testify other summoned grand If, when jury against persons. before the he should decline to or should grand jury, testify, he would commit another testify falsely, punishable act, upon conviction for that time and situation "the appropriate for another sentence would have then arrived, before. And in so far as the in a trial earlier charge, metes out sentence for the in the detection purpose aiding other prosecution enters into the work persons, it police which has prosecution, been committed to other judicial and is officials, inconsistent the duties office. The functions of cannot judge prosecutor united. It be that will fairly immediate safely may good involved, sometimes follow from the departures principles but it will be I take that those agreed, it, are principles *12 such general that great importance we cannot afford have them to the subversive of subjected effect in selected disregard cases.
I concur the views which Parke in his Judge expresses I am separate opinion, that to' except now ready agree that a sentence never be made for may conditional, any pur- that, for pose, instance, a sentence of lar- imprisonment for never be ceny a for might coupled remission provision of restitution of the part stolen. goods J., a filed separate follows: opinion
Pabke, It is true that docket the entries show certain and definite sentence within the these law, but entries brief nota are the tions the who is the A by clerk, hand of the court. merely docket is not the conclusive entry evidence of the court’s act, and, be so, may corrected or shown to be inaccurate or incom plete order that the record conform to the truly facts. may State, State, v. Weighorst 442, 7 Md. v. 449, Watkins 450; State, 14 Md. 412, 421-423; 123 Md. 373, 376, v. Dutton
699
of a
docket
clerk on
A.
Here the entry by
91
417.
for
to' be imprisoned
$1,000
fine of
sentence to
pay
court
of the
the certification
is shown, by
term of sixty days
im
sentence actually
of its
to be
action,
incomplete,
term
subsequent
condition
embrace the
posed
convict would
be abrogated
would
provided
imprisonmnet
other
acts of
criminal
and reveal
jury
before1
go
grand
made
motion
there was no
Although
undisclosed parties.
taken
exception
nor
sentence
this conditional
strike out
be
seem,
may
would
sentence,
to the action
the court,
isas
illustrated
from
on this
the judgment,
reviewed
appeal
A.
State,
400; Kelly
119
87
Md.
557-558,
v.
539,
Cochran
by
State,
State,
A.
Klein v.
899;
133
87, 100-101,
151 Md.
sec.
art.
Code,
A. 591. See
493-494, 135
Md.
State,
The writer of this comment remanded have reversed the tribunal should judgment trial sentence for cause the imposition proper Code. of the is authorized section of article court, as court. I other with the opinion respects fully agree are, my Chief Bond The views Judge expressed by reasons so well and are sound, judgment, supported by wholly is it may stated that further discussion but unnecessary, further to the observed that the condition imposed open false wit- to incite the convict to bear objections tending void ness commit the sentence making perjury, and indefiniteness. uncertainty rule also established statement “it is Chitty their in the exercise of law, that English jixdges the offence, discretion can invent no>new to suit penalties *13 is their own sound law caprices,” jurisdic gratify Com., Laio, tion. 1 4 Blacksione *712; Criminal CMbty State, 14 Peter 378; 421-424; Watkins v. Md. Negro 412, State, State, 208, 15 Md. 4 & Cornish v. 3; McH. H. Negro State, art. 5, 45 90. McDonald v. Md. See 210-211; Code, definite. sec. a valid sentence must be certain and So, 87. it should not Unless authorized statute, depend upon must but decision, nor be to a future contingency, subject TOO PI., 1 Archbold’s Grim. &
be unconditional. Pr. 580; p. Law, Prac., Crim. 1 Chitty 1 on Crim. *701; sec. Bishop Pr., 19 Am. & & 1309; Eng. Ency. 475. Pl.
The sentence at bar
both fine
imposed
and imprisonment.
The service of the
term
jail
depended, however,
only
the convict’s election
with the
but
comply
condition,
also,
and,
court’s determination
ultimately, upon
convict had fulfilled the condition of
before
appearing
grand jury
giving
The sentence
required testimony.
was,
uncertain
therefore,
and indefinite because of an insep
arable condition of a coercive nature.
The authorities
de
sentence. Rex v. Collier
nounce
such
1
Wils.
Cape,
Bennett,
95
647; State v.
332,
20
Eng. Rep.
N. C.
Dev.
(4
& B.
States,
Ex
United
43;
242
parte
Law)
U. S.
27, 45,
State,
S. Ct.
L. Ed.
Wallace v.
72,
142;
129,
prescribes punishment.
HENRY GORMAN v. STATE OF MARYLAND. 52, October Term,
[No. 1931.]