SOBELOFF, C.J., delivered the opinion of the Court.
Edward Wanzer, the appellant, was indicted by the Grand Jury for Howard County on eight counts, six of which charged violations of gambling statutes and two alcoholic beverage law violations. One of the gambling counts was abandoned by the State. A jury found the appellant guilty on the remaining seven counts, (five for gambling and two for liquor violations,) and the Court sentenced him to serve 11 1/2 months in jail and to pay a fine of $500.00.
The principal questions raised on this appeal are as to: (1) whether the Court abused its discretion in refusing to grant a removal of the trial, in view of a certain newspaper publication; (2) the properiety of joining in one indictment counts for gambling and for liquor violations; and (3) the admissibility of evidence seized in a search of the traverser's premises.
The facts are simple and not seriously in dispute. At approximately 3 A.M. on Sunday, August 31, 1952, a state trooper, responding to a complaint from a neighbor that loud noises were emanating from Wanzer's property on Guilford Road, went there to investigate. When the trooper approached within 100 yards of the residence, he saw through a picket fence forty or fifty people many of them holding cans of beer, "milling around" on Wanzer's lawn. However, the trooper did not go into the property until he was accompanied by a Reverend Moore, who lived directly across Guilford Road from Wanzer and who had made the complaint; also a sergeant of the Howard County police, and Justice of the Peace Sanders. Other officers did not arrive till
On the lawn the trooper saw a roulette wheel, not mounted, but lying close to an improvised gambling table. A bracket on the table was found, upon examination, to fit the roulette wheel. They then entered and searched certain outbuildings and finally the dwelling itself. What they found would be sufficient to show violation of both the gambling and liquor laws. The jury found him guilty on the seven counts which were submitted to them.
I. REFUSAL OF A CHANGE OF VENUE
The appellant maintained that it was reversible error for the lower court to deny his petition, supported by an affidavit of counsel and seasonably filed, praying a change of venue on the ground that an account of the raid, published in the only local newspaper, was so inflammatory and prejudicial as to preclude a fair trial in Howard County. The newspaper article is as follows:
We find in it nothing which supports traverser's contention that he was injured by its publication five weeks before the trial. Rather the account appears to be a factual disclosure, and except possibly for the reference to strip-teasers, the reporter seems not to have drawn on his imagination in describing the raid. This article can not with sound reason be characterized as "trial by newspaper". No facts were adduced to support
The petition for removal in non-capital cases is addressed to the discretion of the court. This is, of course, a judicial discretion which, if exercised arbitrarily, is subject to correction on review, and there have been numerous instances, according to Chief Judge Bartol in State v. McNally, 55 Md. 559, of review and reversal. We find no abuse of discretion in denying the petition for removal.
II. JOINDER OF COUNTS FOR GAMBLING AND LIQUOR VIOLATIONS.
The appellant moved to quash the indictment for "misjoinder of counts".
Frequently indictments contain several counts alleging the same offense in different ways to meet the evidence, the details of which the prosecutor may not be able accurately to foresee before the trial. The use of multiple counts is not restricted to this situation, for it is well recognized that counts for distinct crimes may be combined, especially if they are of the same grade or if they are otherwise connected. People v. Gates, 13 Wend. (N.Y.) 311; Pointer v. U.S., 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208; Simmons v. State, 165 Md. 155, 167 A. 60; Wheeler v. State, 42 Md. 563; State v. Burk, 2 H. & J. 426.
III. POLICE ENTRY UPON APPELLANT'S PROPERTY.
We come next to the question of the legality of the police entry upon Wanzer's property.
To indicate that the traverser was conscious of no evil, defense counsel asserted in his opening statement to the jury and repeated during the trial that the gate of the Wanzer place was open to all, including specifically the police of Howard County. When a party makes a show of candor it would seem not unfair to him to accept his statements at their face value, and so it could perhaps be an answer to the claim of illegal entry to say that the appellant invited it. A party is ordinarily bound by admissions made by his lawyer in open court. However, we will decide the question on the merits because the statement is somewhat equivocal, and the testimony in the case seems to disprove the broad statement.
This is not a case in which authority to enter the premises could be claimed under Art. 2B, Sec. 179, Annotated Code of Maryland (1951), for the reason that Wanzer was not licensed to sell alcoholic beverages. Consequently, this section which authorizes "any peace officer * * * to inspect and search, without warrant, at all hours, any building * * * in which alcoholic beverages
Apart from consent, does the law permit entry by officers, without a warrant, upon private property under such facts as this case presents? The traverser concedes that before the entry, the officer, from his position on Guilford Road, heard loud dance music and laughter, and saw people moving about on the lawn. Entry on private premises to execute an arrest warrant is legal. Hubbard v. State, 195 Md. 103, 72 A.2d 733. The precise question of the legality of entry without a warrant turns on whether the events seen and heard by the officers constituted the commission of a misdemeanor in their presence. The term "presence" is a word of art, denoting that before entry on the premises the commission of a misdemeanor is perceptible to the officer's senses, whether they be visual, auditory, or olfactory. See Turner v. State, 195 Md. 288, 73 A.2d 472, and authorities therein cited.
That a peace officer may arrest persons for the commission of a misdemeanor in his presence without a warrant is not to be questioned. Callahan v. State, 163 Md. 298, 162 A. 856; Silverstein v. State, 176 Md. 533, 6 A.2d 465; Bass v. State, 182 Md. 496, 35 A.2d 155.
It is established that a breach of the peace is such a misdemeanor as will authorize entry by the police upon private premises. There is a split of authority as to what constitutes a breach of the peace. Some decisions tend to broaden the definition by including any violation of order or decorum, and hold that fighting or rioting or a show or threat of violence is not an essential element; Davis v. Burgess, 54 Mich. 514, 20 N.W. 540; State v. Reichmann, 135 Tenn. 685, 188 S.W. 597; but we think the better rule is that of the common law which required evidence of an affray, actual violence, or conduct tending to or provocative of violence by others.
Some states are so insistent on violence, or acts tending to provoke it, as an element of a breach of the peace which will authorize officers to enter that it has been held that the use of vile, insulting and abusive language
In Regina v. Prebble, 1 Frost. & F. 325, the defendants were indicted for assaulting a constable who attempted to evict them from a barn, attached to a public house, where they were drinking at a late hour of the night. Baron Bromwell, for the court, said, "The people were doing nothing illegal, nor contrary to any act of Parliament, and therefore the constable was not acting in the execution of his duty as such, although what he did may have been very laudable and proper. It would have been otherwise had there been a nuisance or disturbance of the public peace, or any danger of a breach of the peace."
The New York Court of Appeals has said, "The right of a police officer at common law to arrest summarily was a limited one. `The common law did not authorize the arrest of persons guilty or suspected of misdemeanors, except in cases of actual breach of the peace either by an affray or by violence to an individual.' People v. Phillips (1940), 284 N.Y. 235, 30 N.E.2d 488; citing Stephen's History of the Criminal Law of England, p. 193, Chase's Blackstone 4th Ed., pp. 998, 999, and 6 C.J.S., Arrest, sec. 6 c." What might warrant an arrest for disorderly conduct or disturbing the peace in a public place might still not be sufficient to warrant police intrusion on a citizen's privacy.
The Attorney General referred to certain statutes which it is said were then and there being violated. An examination of these statutes convinces us that they furnish no basis for the police action. See Annotated Code of Maryland (1951). Art. 25, Sec. 23, makes it a misdemeanor to operate a public dance hall outside the incorporated limits of any town or city without a permit. It is questionable whether a 12' x 27' concrete surface, formerly the floor of a fire-gutted chicken house, on which couples were found dancing to a three-piece band, can be considered a public dance hall. Art. 27, Sec.
So also, Art. 27, sec. 146, cited by the State, punishes and prohibits disturbances of the peace, but is expressly made applicable only in Charles, Montgomery and Prince George's Counties, and Art. 27, sec. 144 prohibits and punishes disorderly conduct on certain public conveyances. Art. 27, sec. 578, denounces as a violation working or doing bodily labor on Sunday, or suffering one's children to do so. It is silent as to noise or other disturbances. Absence of any clear common law authority, coupled with the existence of such statutes as above recited of limited application, indicates caution in sanctioning police entry into the "curtilege" (i.e. the area surrounding a dwelling house) to suppress mere playing of music. The requirements of public order can ordinarily be met by police knocking on the door and giving admonition. Such, in fact, is the common practice.
Turner v. State, supra, rules this case. There officers responded to a radio call informing them of an alleged altercation at a restaurant. Finding no disturbance there and observing a small building across the road near the entrance to which were a number of people carrying bottles of beer, the officers proceeded to enter. Although admonished that it was a private club, the officers nevertheless persisted. In reversing the conviction, this court, speaking through Judge Collins, said, "We are of the opinion that the search and seizure in this case, made without a search warrant or other warrant, not for the purpose of making an arrest, and no offense being committed in the presence and view of the officers, was unlawful and the evidence procured thereby was not admissible." [195 Md. 288, 73 A.2d 475]
We hold that the entrance of the police on the appellant's lawn and then into the house and the seizures made were illegal. We have no occasion to consider whether if the entry on the lawn had been legal the search could lawfully have been extended to the house. As there is not sufficient evidence independent of the discoveries made in the search to warrant a verdict of guilty, the judgment will be reversed.
Reversed and new trial awarded.