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Colie v. State

Court of Appeals of Maryland
Nov 11, 1949
69 A.2d 497 (Md. 1949)

Summary

In Colie v. State, 193 Md. 608, 69 A.2d 497, we recognized the general rule that in order to introduce a telephone conversation in evidence against the person at the other end of the line as the conversation of that person, it is necessary to identify him, but we held that where the purpose of the evidence is merely to show that the police placed a bet with a person who answered a certain telephone number given them by the accused, who told them that bets could be placed there, no identification of the person answering the telephone is necessary.

Summary of this case from White v. State

Opinion

[No. 21, October Term, 1949.]

Decided November 11, 1949.

Criminal Law — Bookmaking — Testimony That Accused Gave Officer Telephone Number Where Bet Was Placed Admissible — Defendant's Objection to Admission of State's Testimony Properly Overruled Where He Testified to Same Effect — Court of Appeals Cannot Consider Admissibility of Evidence Unless Objection in Lower Court — Meaning of "Call-in Bet" Within Knowledge of Police Officer Testifying Thereto — Telephone Conversation Admissible Against Defendant Who Told Officer Bet Could Be Placed There Even Though Party At Other End Not Identified — Motion to Strike Entire Statement Properly Refused Where Portion of Statement Relevant to Offense Charged Though Other Portions Related to Various Transactions With Which Accused Was Not Charged — Testimony That Accused Carried a Large Amount of Money When Arrested Admissible.

Testimony that accused, charged with accepting bets and making a book on a running race of horses, Code (1939), Art. 27, sec. 291, furnished a police officer with a telephone number on an envelope, admitted into evidence, where accused said bets could be placed, that the officer called there and placed a bet after using accused's name, and that accused at one time collected from the officer and at another time paid him on bets placed there, was admissible as part of a chain of testimony which proved the charge and was relevant to the offense charged in the warrant. pp. 610-611

Even if the trial court had committed error in admitting the above testimony, accused was not prejudiced, for he admitted in his own testimony the statements of the officer to which he formerly objected; when inadmissible evidence is admitted over objection, if the same evidence is later admitted without objection, the error is harmless. p. 611

Where accused failed to object when an officer was asked what he meant by a "call-in bet", the question of the admissibility of his answer was not properly before the Court of Appeals, for if the trial court had no opportunity to pass upon the question, there is nothing for the Court of Appeals to review. pp. 611-612

Police officers working on gambling cases must of necessity have knowledge of the manner in which race horse gambling is conducted, and an officer's explanation of what is meant by a "call-in-bet" would be admissible in evidence. p. 612

Although to offer a telephone conversation in evidence against the person at the other end of the line as the conversation of that person, it is necessary to identify him, where the purpose of the evidence is to show that the police placed a bet on horse races with a person who answered a telephone number given them by accused, who told them that bets could be placed there, no identification of the person answering the telephone is necessary. pp. 612-613

In the case at bar officers, as part of a general statement recounting admissions by accused of various transactions including the specific one with which he was charged, accepting bets and making a book on a running race of horses, referred to an admission by accused of taking a numbers bet some time prior to the offense charged. A motion by accused's attorney to strike out the entire statement, which included testimony pertinent to the offense charged, was properly refused as being too broad. p. 613

Testimony that accused, charged with accepting bets and making a book on a running race of horses, carried a billfold containing a large sum of money when arrested was admissible as one of the links in the chain of circumstances of the case to prove the accused was making a book on horse races, money being one of the stocks in trade of gambling. p. 613

Accused, who testified on direct examination that he carried a large sum of money when arrested and charged with accepting bets and making a book on a running race of horses, was not prejudiced by the trial court's ruling that the State could introduce testimony to the same effect on its own behalf. p. 613

J.E.B.

Decided November 11, 1949.

Appeal from the Circuit Court for Montgomery County (PRESCOTT, J.).

Wyndol O. Colie was convicted of the statutory crime of accepting a bet and making a book on a running race of horses, Code (1939), Art. 27, § 291, and he appeals.

Judgment affirmed.

The cause was argued before MARBURY, C.J., DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

Joseph C. Cissel and Edward L. Foster for the appellant.

Kenneth C. Proctor, Assistant Attorney General, with whom were Hall Hammond, Attorney General, and Walter W. Dawson, State's Attorney for Montgomery County, on the brief, for the appellee.


This is an appeal by Wyndol O. Colie from a judgment entered upon a verdict of "guilty" by a jury, under a warrant charging him with accepting bets and making a book on a running race of horses in Montgomery County. Code 1939, Article 27, § 291.

During the trial of the case, Officer Robert A. Popcke testified, over objection, that the accused on the 2nd day of November, 1948, in conversation with him, gave him the telephone number of a booking establishment where he could place "call-in bets." He testified that this number, Michigan 6475, was written by the defendant on an envelope and handed to him. This envelope was admitted in evidence over objection. The appellant claims that this testimony of the police officer and the envelope should not have been admitted. This conversation took place only a day before the offense charged. This testimony was later followed up by evidence that Officer Popcke on November 2d 1948, called the telephone number given him by the accused and, after using Colie's name as a reference, placed a bet on a horse. On November 3rd, the officer paid to the defendant, at his request, five dollars for the bet he had lost the previous day. On November 5th, 1948, the appellant paid the officer the sum of $6.40 for winning a bet he had placed two days before at Michigan 6475. The evidence, objected to, was a part of a chain of testimony which proved the charge and it was relevant to the offense charged in the warrant. The telephone number was part of the general scheme of placing "call-in bets." Hitzelberger v. State, 174 Md. 152, 161, 197 A. 605. Even if error were committed in permitting the introduction of this evidence, which we do not find, the accused was not prejudiced by the Court's ruling because when the accused took the stand in his own defense he was asked, by his own counsel, about his conversation with Officer Popcke and he admitted it, saying that he gave the telephone number to Officer Popcke and collected the loss of $5.00 and delivered the winnings of $6.40 as favors to the officer and to the bookmaker. He admitted in his own testimony the statements of the officer, to which he formerly objected. This Court has often ruled that when inadmissible evidence is admitted over objection, if the same evidence is later admitted without objection, the error is harmless. 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, 200, 44 A.2d 474; Courtney v. State, 187 Md. 1, 17, 48 A.2d 430; Barber v. State, 191 Md. 555, 563-564, 62 A.2d 616, 620.

During the trial Officer Popcke was asked what he meant by a "call-in bet," and no objection was made to that question, and the officer explained the meaning of a "call-in bet." The only objection was later to the officer giving an example of a "call-in bet." This example was not given. As no objection was made, the question is not properly before this Court. Without objection and without an opportunity for the trial court to pass upon the question, there is nothing for this Court to review. Courtney v. State, 187 Md. 1, 4, 5, 48 A.2d 430; Davis v. State, 189 Md. 269, 273, 55 A.2d 702, 704. The appellant claims that the officer should have first been qualified as an expert, and a proper foundation should have been laid to show that he had previous knowledge of the operation of such a system for receiving call-in bets. If this point were properly before us, which we do not find, we see no error. Police officers working on gambling cases must of necessity have knowledge of the manner in which race horse gambling is conducted. It is hard to conceive that any police officer would not be able to explain what was meant by a "call-in bet." See Allen v. State, 178 Md. 269, 276, 13 A.2d 352; Bratburd v. State, 193 Md. 352, 356, 66 A.2d 792, 794.

During the trial of the case two police officers testified that a telephone call was made to telephone number, Michigan 6475, which number was given Officer Popcke by the accused, and that an unidentified person answered that telephone and took the bets. The appellant contends that because this call was made out of the presence of the accused, and because there was no identification of the person at the other end of the telephone line, this evidence was not admissible. This telephone conversation was not offered in evidence against the person at the other end of the line as the conversation of that person. In such a case, of course, it would have been necessary to identify that person. Rowan v. State, 175 Md. 547, 558, 3 A.2d 753. Here the evidence was offered to show that the telephone, the number of which was given by the accused, was located at a place where bets were taken over that telephone. The purpose of this evidence was to show that the police placed a bet on horse races with a person who answered the telephone number Michigan 6475, and that was where the accused told the officer that bets could be placed. Baum v. State, 163 Md. 153, 160, 161 A. 244; Courtney v. State, 187 Md. 1, 6, 48 A.2d 430.

The appellant claims that two of the officers testified that the accused admitted taking a numbers bet from Officer Popcke four or five weeks prior to the offense charged here. He contends that this was prejudicial to the accused and there was no connection between the bookmaking and the numbers bet. However, this evidence was a part of a general statement made by the officers about admissions by the appellant of various transactions including the specific one with which he was charged. A motion was made to strike out the whole statement. This motion was entirely too broad and was properly refused.

Officer Whayland testified that at the time they served the warrant they found in the hip pocket of the accused a billfold with seven one-hundred dollar bills, a driver's license, and other papers. The appellant contends that this testimony should not have been admitted because it prejudiced the jury against the accused. This evidence was properly admitted as one of the links in the chain of circumstances of the case to prove the accused was making a book on horse races. Berger v. State, 179 Md. 410, 413, 414, 20 A.2d 146; Wilson v. State, 181 Md. 1, 3, 4, 26 A.2d 770; Jones v. State, 182 Md. 653, 657, 35 A.2d 916. Money is one of the stocks in trade of gambling. Bratburd v. State, supra, 66 A.2d at page 794. Even if this testimony were inadmissable, which we do not find, like the first point discussed in this opinion the accused was not prejudiced by the Court's ruling because he testified under direct examination, by his own counsel, that seven hundred dollars were found on his person. He said he received this from the sale of a car. Damm v. State, supra; Smith v. State, supra; Purviance v. State, supra; Courtney v. State, supra; Barber v. State, supra; Baum v. State, supra. The judgment will be affirmed.

Judgment affirmed with costs.


Summaries of

Colie v. State

Court of Appeals of Maryland
Nov 11, 1949
69 A.2d 497 (Md. 1949)

In Colie v. State, 193 Md. 608, 69 A.2d 497, we recognized the general rule that in order to introduce a telephone conversation in evidence against the person at the other end of the line as the conversation of that person, it is necessary to identify him, but we held that where the purpose of the evidence is merely to show that the police placed a bet with a person who answered a certain telephone number given them by the accused, who told them that bets could be placed there, no identification of the person answering the telephone is necessary.

Summary of this case from White v. State
Case details for

Colie v. State

Case Details

Full title:COLIE v . STATE

Court:Court of Appeals of Maryland

Date published: Nov 11, 1949

Citations

69 A.2d 497 (Md. 1949)
69 A.2d 497

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