COLLINS, J., delivered the opinion of the Court.
This is an appeal by William H. Turner and Alexander W. Stephens, appellants, from convictions on two indictments charging each with the operation of a gaming table and selling beer without a license. The evidence against these two appellants was obtained by a search of the premises without a search warrant or other warrant.
About 1:30 a.m. on Monday, May 15th, 1949, Officers King and Wiseman of the Prince George's County Police Force and Deputy Sheriff Shepp were patrolling the roads of Prince George's County. At that time they received a call by radio to proceed to the Bowie Restaurant because there was a fight at that address. At the time they arrived at the restaurant they found no disturbance. There were a number of people on
As the officers entered this first floor or basement room they saw forty or fifty people sitting in booths, some standing in the center of the floor and some at the bar. They saw William Turner put two bottles of beer on the counter and then turn and ring up an undisclosed amount on the cash register. Two people grabbed this beer and went back and sat down in a booth. In the center of the room there was a music box and two slot machines commonly called "one-armed bandits." They also saw bottles of beer on the table. Sergeant Thompson of the Prince George's County Police Force was called by radio and he arrived at the premises about 2:00 a.m. He played the two slot machines putting in three nickels and receiving four back on the third nickel. These two slot machines, seven cases of assorted beer, and the two defendants were taken to Hyattsville, where they were charged with the crimes set out in the indictments. Testimony was offered that the premises entered was that of Bowie Social Political Club, incorporated, that appellant Stephens was one of the incorporators of the corporation, and that the basement room entered was rented to Stephens. The remainder of the house was occupied as a home by other people. These premises had no license to sell beer and a search of the premises was therefore not authorized under the statute permitting the search of places authorized to sell alcoholic beverages. Code 1947 Supplement, Article 2B, section 161. Zukowski v. State, 167 Md. 549, 555, 175 A. 595.
Since the passage of Chapter 194 of the Acts of 1929, now modified by Chapter 752 of the Acts of 1947, Article 35, section 5, 1947 Supplement of the Code, commonly known as the Bouse Act, evidence obtained by means of an unlawful search and seizure is inadmissible in the trial of misdemeanors. Silverstein v. State, 176 Md. 533, 540, 6 A.2d 465; Leon v. State, 180 Md. 279, 282, 23 A.2d 706; Frantom et al. v. State, just decided, 195 Md. 163, 72 A.2d 744. However, if a misdemeanor is committed in the presence or view of an officer he may arrest the offender immediately without a warrant. Callahan v. State, 163 Md. 298, 300-301, 162 A. 856; Silverstein v. State, supra; Bass v. State, 182 Md. 496, 505, 506, 35 A.2d 155. After such an arrest the officer may, as an incident thereto, at the same time, search the person arrested and also search for and seize any evidence or instruments of the crime "whether upon his person or within his use and immediate control or possession." Silverstein v. State, supra, 176 Md. at page 541, 6 A.2d at page 468; Callahan v. State, supra, 163 Md. 300-301, 162 A. 856; Bass v. State, supra, 182 Md. 506, 35 A.2d 155; Johnson v. State, 193 Md. 136, 154, 66 A.2d 504, 511. The room of the person arrested in which the commission of the crime was seen can be searched for tangible evidence and instruments of the crime. Johnson v. State, supra, 193 Md. 154, 66 A.2d 511; Silverstein v. State, supra, 176 Md. 541, 6 A.2d 465; Hubbard v. State, just decided, 195 Md. 103, 72 A.2d 733.
Therefore, the question before this Court in this case is whether there was evidence that a misdemeanor was committed in the presence or view of the officers, before their entry, in the room entered. As was said in the case of Romans v. State, 178 Md. 588, at page 600, 16 A.2d 642, at page 647: "* * * Committing an offense
In the case of Gorman v. State, 161 Md. 700, 158 A. 903, the officer, upon information received, watched for two successive days the home of the appellant where lottery violations were suspected. On each of these days he saw fifteen or more persons enter the house and leave carrying papers in their hands. On the third day a person entered the house through the front door, leaving it ajar. The officer pushed the door open and walked in without a warrant either to search the house or arrest the appellant. In that case this Court held that the search and seizure was illegal and the evidence obtained not admissible.
In the case of Bass v. State, 182 Md. 496, 35 A.2d 155, supra, the appellants were indicted for violating the law prohibiting the showing of obscene motion pictures. The police department of Baltimore City had been forewarned as to the alleged obscene nature of the exhibition to be given at a pre-arranged stag party. A poster which had fallen into the hands of the police showed that at this party a so-called "strip tease" performance was to be given. Four officers were sent to the designated premises which was located on the fourth floor of a lodge building in Baltimore. The officers entered the building, went to the fourth floor and rapped on the first door they came to. They were refused admission and told that a private meeting was being held. The officers then walked to the opposite side of the building and one of them rang a bell at a door which was opened to them by one of the appellants. The officers then entered from the hall into an anteroom without any protest or hindrance. In this room were other persons including two women. While standing in this anteroom the officers heard remarks coming from the adjacent lodge room which indicated that an obsence and lewd show was in progress. They then turned the knob of
In the case at bar the officers had no previous information or forewarning that a crime was being committed in the premises entered. The building entered according to the testimony of the officers appeared to them to be a home. They saw a number of people milling outside of the door of the dwelling with bottles of beer in their hands coming in and out of the door, and some were intoxicated. The officers admitted that even though there was no disturbance of the peace and no disorderly conduct and nothing which made them go in to quiet anyone or arrest anybody, they went right through the door in the house just to investigate what was going on.
If it was lawful for the officers to enter these premises without a warrant of any kind it would be lawful for
The State contends that because some of the testimony of the officers, as to what they observed in the premises, was admitted by the Court without any objection on the part of the appellants, that objections to other evidence as to this line of testimony was waived and nothing is presented to this Court for review. Damm v. State, 128 Md. 665, 669, 97 A. 645; Smith v. State, 182 Md. 176, 184, 32 A.2d 863; Purviance v. State, 185 Md. 189, 44 A.2d 474; Davis v. State, 189 Md. 269, 55 A.2d 702; Barber v. State, 191 Md. 555, 564, 62 A.2d 616, 620; Colie v. State, 193 Md. 608, 69 A.2d 497. However, the record clearly shows that when the State offered in evidence boxes filled with beer bottles taken out of the cooler in the Bowie Political Club, and the cases of beer and the two slot machines taken from the premises, objections were seasonably made by the appellants to the admission of these articles in evidence and the objections were overruled by the Court. Finding that these articles should not have been admitted in evidence, under the provisions of the Bouse Act, Article 35, Section 5, 1947 Supplement of the Code, supra, the judgments must be reversed.
Judgments reversed, new trials awarded.