Appeal from the Circuit Court for Howard County; Macgill, J.
Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ. Prescott, J., delivered the opinion of the Court.
Robert Hugh Curley has appealed from the judgment and sentence of the Circuit Court for Howard County entered on May 2, 1957, upon a verdict of guilty on all counts under an indictment charging in four counts violations of the gambling laws by making and selling a book and pool on the result of horse races, and charging in one count the unlawful receiving of money to be bet on horse races (Art. 27, sec. 306 (Code 1951)); and from the judgment and sentence upon a verdict of guilty under an indictment charging the maintenance of a disorderly house. The two cases were tried together before the court, sitting without a jury.
The single question involved on this appeal is whether the evidence was sufficient in law to sustain the convictions, or were the verdicts of the trial court clearly erroneous.
Acting upon the request of the State's Attorney for Howard County, Policewomen LaPlante and Brethauer, members of the Rackets Division of the Baltimore City Police Department, were assigned to investigate the activities of the appellant at a diner and cocktail lounge known as the Outriders'
Diner, located on the Washington Boulevard in Howard County. The policewomen began their investigation on October 17, 1956, and subsequently observed the appellant in the diner on October 19, 20, 23, 1956. On all these dates races were being run at "Marlboro" (Upper Marlboro).
The Outriders' Diner was described as consisting of a cocktail lounge and bar in one part, with a diner portion adjoining. To the rear of the cocktail lounge and bar was a passageway which led to a ladies' room, a men's room and a room marked "Private." The door to this room was sometimes open, and at other times closed, but apparently not locked. Many people were present at all times, to whom meals and drinks were served. The place was frequented primarily by persons interested in, or associated with, horses, races and race tracks; and these subjects were the main topic of conversation in the establishment.
On the morning of October 17, 1956, at approximately 11:45 a.m., the policewomen arrived at the Outriders' Diner and took a seat in the cocktail lounge. At that time the appellant was present, and they observed him "run and answer" the telephone whenever it rang in the cocktail lounge or the diner. He seemed to be the only one receiving any telephone calls. Whenever he went to answer the telephone, he carried a scratch sheet in his hand and would take it with him into the telephone booth. He was observed sitting down in the booth and writing after each call. The policewomen testified that he was called to the telephone eight or ten times while they observed him from 11:45 a.m. until approximately 1:10 p.m. They also observed that Curley put the papers on which he was writing in his pocket, and that they were of various shapes, sizes, forms and colors. One of the policewomen observed that he had sorted through the slips and took money out of his pocket and counted it. She overheard a man say to him, "Where are the slips?" and the appellant nodded toward a doorway leading to the backroom, the door of which was marked "Private."
On the following day of investigation, October 19, 1956, the policewomen arrived at the premises at approximately 11:00 a.m. and stayed until approximately 1:50 p.m. Again,
Curley constantly answered the telephone and took his scratch sheet with him. When he came out of the telephone booth, he folded the slips upon which he had written with a group of other slips and put them in his "pants'" pocket. On this occasion both of the policewomen overheard an old man at the bar tell the appellant, "Put two on . . . in the sixth" (neither of the witnesses could make out the name of the horse). At that time the witnesses observed money being passed, namely, two one-dollar bills, from the old man to Curley. At the same time, Curley was writing on a slip of paper. After he had written on the slip of paper, he took the same and went into the back room which was marked "Private."
The third investigation was conducted on October 20, 1956, the policewomen arriving at 11:50 a.m. At approximately noon, a well-dressed man came into the diner and the policewomen observed Curley give him some money, and the following conversation was overheard, the man saying: "That's all right about the change," and Curley said: "No, you get all that's coming to you." On the same day, Curley received about six telephone calls, and he was observed sitting down and writing during each one of these calls. On one occasion when he came out of the booth, after having talked on the telephone, he sat at a table, took a number of slips from his pocket, sorted them and spread them out on the table. After making some notations on them, he put ...