Brooks v. State

Morton, J., delivered the opinion of the Court. The basic question presented in this appeal is whether an individual who enters a store while it is open to the public for business, secretes himself therein and then is apprehended after the closing hour under circumstances which indicate an intent to steal, can be convicted of storehouse breaking, Code, Art. 27, § 32. Charles Brooks, a/k/a Charles Brice, was found guilty of breaking and entering after a non-jury trial in the Criminal Court of Baltimore (Liss, J., presiding). Sentence was set at five years under the jurisdiction of the Division of Correction.

The testimony of the three State’s witnesses established that on the evening of July 28, 1973, the Two Guys department store located at 2401 Belair Road closed its doors to the public at the conclusion of its normal business day. In ¹⁹⁶ the course of the daily routine, the store was completely secured from the outside, merchandise for sale within the store was appropriately secured and no unauthorized personnel had permission to enter the premises. At approximately 2:30 a.m. on the morning of July 29, 1973, both the city police and a private security firm, A.D.T., responded to an alarm at the store. An employee of the security organization stated that although the store building was “secured from the outside,” the continued sounding of alarms from inside indicated to him that someone was moving around within the building.

Officer William Childs of the Baltimore City Police Department had also arrived on the scene. He corroborated testimony that the building was, to all appearances from the exterior, secured. Along with other officers, he entered the Two Guys store and discovered appellant and two other men hiding “inside the lower shoe case inside the shoe department.” A search of the store revealed that encasements of jewelry had been opened and rifles, which had been chained to a gun rack, had been forcibly removed. The officers observed this merchandise near the place the appellant was apprehended.

Appellant testified on his own behalf. His recollection of the events started around 8 p.m. on July 28, 1973, with his imbibing “[a]bout a pint and a half” of “Grand Dad” and “Bacardi Rum.” Appellant then remembered proceeding toward his mother’s house when two friends, John and Robert, happened along and, apparently’ feeling the effects of overindulgence, “I asked them if I go with them would they see that I get home safely.” The three hailed a taxi but instead of going home drove to the Two Guys department store. The store was still open, the threesome entered, appellant stating: “I went in the back and got something to eat. I was hungry and tired and I went in the shoe department and they told me to sit down, I was tired and I got in on the shelf and went to sleep.” Sometime later, after the store was closed, his two companions returned to waken him but appellant dismissed ¹⁹⁷ them saying “man, don’t bother me I’m sleeping.” Appellant was subsequently roused from his slumber by loudspeakers barking “come out” and believing, correctly, that he was in trouble he returned to his homelike shelf in an attempt to hide.

On the basis of this record, Judge Liss found appellant guilty of storehouse breaking. It is in this factual posture that appellant contends that “There was not sufficient evidence of the essential element of ‘breaking’ to convict Brooks [appellant] of storehousing breaking.” Code, Art. 27 § 32 provides: “Every person, his aiders, abettors and counsellors, who shall be convicted of the crime of breaking a storehouse, filling station, garage, trailer, cabin, diner, warehouse or other outhouse or into a boat in the day or night with an intent to commit murder or felony therein, or with the intent to steal, take or carry away the personal goods of another of the value of one hundred dollars ($100.00) or more therefrom, shall be guilty of a felony, and upon conviction sentenced to the penitentiary for not more than ten years.” As used in the statute, breaking is given its common law meaning. This requires either an actual or constructive breaking of the storehouse by a criminal trespass. Reagan v. State, 2 Md. App. 262 .

The appellant implicitly argues that because he entered the store premises at a time when it was open to the public for business, he entered with the consent of the owners. Thus, he argues, his entrance into the store was not by “breaking,” either actually or constructively. At this point or stage in appellant’s conduct, his reasoning would appear to be unassailable. His course of conduct, however, did not stop at that point.

Unlike other members of the public, he did not make his departure when the store closed but remained therein in spite of the fact that any reasonable person would understand that the owner’s ¹⁹⁸ invitation to be present in the store terminated at the time when the store was closed for business. It has been