Bowser v. State

Boyb^ O. J., delivered the opinion of the Court. The indictment in this -case contains three counts. The first alleges that the traverser1 “on the 29th day of June, in the year of our Lord nineteen hundred and nineteen, about the hour of 6 in the morning of the same day, at the county aforesaid, the dwelling house of one Ernest Yolkhart, there situate, unlawfully did break with intent to commit s certain felony there and therein, to wit,” etc. ³⁴⁴ The second count is the same excepting, it alleges the dwelling house to be that of one Affena Ripkin, and the third ■charges him with larceny. There wasi a demurrer to the indictment and to each count ■thereof, which was overruled (the record states that it was to a plea, but that is corrected by agreement).

There was .also a motion to quash which was overruled, and the traverser then entered the plea of “not guilty.” He was convicted and sentenced to confinemnt in the penitentiary for three years. This appeal wasi taken, and the only questions prop*erly before us are presented by the rulings on the demurrer .and the motion to quash. It is contended that the first and second counts are defect five because it isi not alleged that the traverser feloniously and burglariously broke and altered, etc., but under our decisions that contention cannot be sustained. The statute on which those counts are based (S'ec. 33 of Art. 27 of Code) •does not malee the offense burglary, or a felony.

To constitute burglary at common law the breaking must have been in the night time, while this statute provides that: “Every person, his aiders, abettors and counsellors, who shall be convicted of the crime of breaking a dwelling house in the day time with the intent to commit murder or felony therein * * * shall be sentenced to the penitentiary for not less than two nor more than ton years.” The fact that in the Cod© this section is under the subdivision “Burglary” is not material. There are a number of instances in Article 27 of the Code where crimes are classified under a particular head which do not amount to the ■crime under which they are so placed. For example, Section 422 is under the subdivision “Rape,” but no one would contend that the violation of that section would be rape, as the statute declares that it shall be deemed a misdemeanor and provides that “nothing in this section contained shall be construed to affect or interfere-with the law relating to the crime ³⁴⁵ of rape as, now in force in this State.” Section 294 is under the head of “Larceny,” although in important respects that section falls far short of larceny and isi declared by the statute to be a misdemeanor. It was said in State v. Popp, 45 Md. 432, 437 , and repeated in Dundalk, etc., Ry.

Co. v. Gov. Smith, 97 Md. 177 , that: “In arriving1 at the true construction of any particular section of the Code very little reliance can, we think, be placed upon the heading under which it may be found.” The crimes covered by Steetion 33 are not made felonies, and in this State “only those are felonies which were such at common law, or have been so declared by statute.” Dutton v. State, 123 Md. 373, 378 . In Black v. State, 2 Md. 376 , the indictment charged that the traverser “a certain stack of hay of and belonging to one Aaron Miller, feloniously, unlawfully, wilfully and maliciously did bum,” etc. The Court held that that was not a felony at- common law or1 under the statute, and that- no valid judgment could be pronounced. Other cases in this 'State could be cited to the same effect, but it is only necessary to add that it would have been error to have alleged that the traverser did feloniously and burglariously break and enter, etc., as it was: not a felony and was not burglary at common law, or made so by the statute under1 which he was indicted.

There is: nothing in Robinson v. State, 53 Md. 151 , or Smith v. State, 106 Md. 39 , cited by appellant, to the contrary of what we have said. In the former the Court held that the evidence offered and rejected below was relevant, as reflecting upon the intent with which the act was done. The statute passed on in Smith v. State provided .that any person who broke and entered, either by day or night, any building, whether inhabited or not, and opened or attempted to open any vault, safe or other secure place by the use of explosives shall “be deemed guilty of burglary with explosives,” and a higher penalty than for ordinary burglary was. authorized. It is> also contended that those counts were defective because the time is insufficiently alleged in order to comply ³⁴⁶ with, the statute, but we are of the opinion that the charge that on the 29th day of June, 1919, “about the hour of 6 in the morning of the same day” did sufficiently show that the traverser was charged with breaking a dwelling house in the day time.

It would scarcely be contended' that that would be a sufficient allegation of time in an indictment for burglary at common law, and in this State we are governed by the common law in reference to that crime, as our statute .simply prescribes the punishment for burglary, without defining what should constitute it, or affecting the requirements •of the common law, in order to convict of that crime. “Burglary, at common law, is the breaking and entering the dwelling house of another in the night, with intent to commit some felony within the same, whether the felonious intent be exeeuted or not.” 2 Wharton Crim. Law (11th Ed.) 1187, Sec. 966; 5 Am. & Eng. Enc. of Law, 44; 9 C. J. 1009. It could not be correctly said that 6 o’clock in the morning; on the twenty-ninth of June is in the night time.

It is said in 9 C. J. 1021 that: “In the absence of statutory provision to the contrary, the ‘night time,’ within the definition of burglary, is, as was held at common law, that period between sunset and sunrise during which there is not daylight enough by which to discern a man’s face.” In the note to that statement there is a quotation from 4 Black. Com. 224 that: “The malignity of the offense does not so properly arise from its being done in the dark, as at the dead of night, when all the creation, except beasts of prey, are at rest, when sleep has disarmed the owner and rendered his castle defenseless.” In 4 R. C. L. 425, Par. 13, it is said: “As has been seen, the burglarious act, at common law, must have been committed in the night season. This was not confined to the -exact period between sumase and sunset (sic), and the rule is thus laid down by Blackstone: ‘If there be daylight or erepuseulum enough, begun or left, to discern a man’s face withal, it is no burglary. But this does not extend hr moonlight.’ This rule of Blachstone is substantially supported in ³⁴⁷ those States where there is no statutory definition of nighttime.” It would seem, therefore, to be