Brown v. State

Lowe, J., delivered the opinion of the Court. If, as it has been said, law is common sense as amended by the Legislature, it is an unfortunate fact that common sense is judicially modified as well. At common law the crime of arson was a homeowner’s protection, criminalizing the wilful and malicious burning of ⁴⁹⁹ the dwelling house of another. Rather than modify that common sense protection, the Legislature expanded its scope to include any building, whether owned by the person who burned it or by anyone else; 1 however, the safeguard for the innocent of requiring proof of a wilful and malicious state of mind was statutorily retained.

Yet the possible consequences of that broadened scope still portend problems even for one who chooses to use fire to raze or demolish an old unwanted building on his own property, because despite an environmental or other governmental “permit”, there appears to be no absolution in the statute allowing its sanctions to be waived by anyone for any purpose. The only hedge against conviction for innocently doing away with a dilapidated building eyesore in such a manner is the apparently substantial burden placed upon a prosecutor to prove that an accused “wilfully” burned such a building with a “malicious” intent. Even that protection, however, has been judicially eroded over the years to such an extent that a showing of an intent to burn by the accused — even his own dilapidated building — is sufficient for a jury to convict. Wilfulness has been judicially equated with malice, and malice has been eroded to mean criminal intent.

Thus we have come full circle. In disposing of an eyesore, one who elects to burn it, rather than raze it, is a felon if he merely intended to do so — because that which he intended is criminally proscribed, and he is charged with knowledge of that statutory proscription. That may sound a little scary, but if it appears absurdly improbable, let’s look at the analogous case of Mike Brown. “Fire giveth lyght to things farre off, and burneth that which is next to it. The Court shineth to me that came not there, but singeth those who enter.” 2 — the building — Because he caused the abandoned and derelict clubhouse at Laurel Raceway to be burned rather than razed or ⁵⁰⁰ otherwise demolished, Mike Brown (a Laurel officer, director and substantial stockholder) was convicted of arson.

The physical facilities at Laurel Raceway had deteriorated so badly that its 1975 summer meet could not be held at its own facility. On Brown’s behalf, and at his request, a Laurel administrative assistant named Patricia Ann Gorman obtained demolition bids for the clubhouse in anticipation of a major improvement of the track facilities. In light of the extensive estimates (in the vicinity of $15,000), Brown then had Ms. Gorman investigate the possibility of having the clubhouse burned by the Savage Fire Department. After initially agreeing, the Department subsequently declined because, upon looking into the situation, it determined that the proposed burning would be unsafe and environmentally unsound.

Continued efforts through other fire departments were also unavailing. The building was ultimately burned (by a part-time employee and another person) at the direction of Ms. Gorman, who testified that she contracted for this extra-legal burning upon the instructions of Brown. Seven questions are raised on appeal following Brown’s conviction by a jury in the Circuit Court for Howard County. 3 The first two relate to the structure that was burned. As pointed out, that structure was a 20-year-old shell of an unused clubhouse, primarily of “[s]teel skeleton construction with a frame flooring interior and bearing walls with a built up roof”.

The windows (including the viewing panels) had been removed or broken, utilities had been turned off, copper piping removed and the interior severely vandalized. ⁵⁰¹ Initially, appellant calls upon us to define the term “building” as used in the arson statute, Md. Code, Art. 27, § 7, and though he would have it narrower, presses upon us as a starting point the definition extracted from Freeform Pools v. Strawbridge, 228 Md. 297 , 301: “Taken in its broadest sense it can mean only an erection intended for use and occupancy as a habitation, or for some purpose of trade, manufacture, ornament, or use, such as a house, store, or a church.” (emphasis added). Presumably attracted by the “intended for use and occupancy” language, appellant veers south to a qualifying definition more applicably used in the arson case of State v. Cuthrell, 235 N. C. 173 , imposing the condition that the edifice burned be “usable for some useful purpose”. Assuming we will adopt his composite definition of usable or intended for use, appellant then points out that the State failed to provide sufficient evidence to meet either criteria, an issue which he preserved by motion for judgment of acquittal. We are not persuaded that because of the “intended for use” language used by the Court of Appeals in Freeform, the buildings the Legislature intended to protect from an arsonist’s torch are only those “usable” at the time of burning.

In Freeform, a case ultimately limited to its facts, the litigant sought to encompass a swimming pool within the mechanics’ lien definition of a building. Quoting from Black’s Law Dictionary (4th ed. 1951), the Court there pointed out that: “ ‘The identity or difference of meaning of the words ‘building’, ‘improvement’ and ‘structure’ depends upon context in connection with which they are used.’ ” Id. at 301 . Quite obviously a special lien for work and materials imposed upon a building already erected or improved logically would require the use limitations imposed by the Court’s definition. The Legislature, however, just as reasonably could use the term building in a statute enacted to protect real property ⁵⁰² from wilful malicious destruction, regardless of the prospective utilitarian purpose for which the building is left to stand.

It is apparent from the statutory pattern that the legislative scheme is to criminalize any uncontrolled burning. Without regard to ownership of the thing burned, § 6 of Art. 27 forbids the burning of a dwelling house or “other outhouse that is a parcel thereof”; § 7 attaches that prohibition to any other building not a parcel of a dwelling house; and, presumably to include whatever combustibles that might be missed by the foregoing sections, § 8 appears to be a miscellaneous catchall ranging from haystacks to vehicular conveyances, and including a wide range of possible combustibles, such as “any pile of planks, boards, posts, rails or other lumber;...”. See appendix. The American Heritage Dictionary of the English Language definition for “building” is: “Something that is built; a structure; an edifice.” For this Court now to speculate that by using the word “building” the Legislature intended something more restrictive than its ordinary meaning, despite its obvious effort to include in its realm every type of burnable matter in whatever form, by using specific references followed by broad generic catchall terms to guard against restrictive interpretation, would be judicially to impose restrictive interpretation upon a term of common usage generally understood to apply without regard to its present or intended use.

It is inconceivable that the protection of the statute was directed toward something less than that, or that the law was designed to exclude from its strictures any unaccountable burning of a building simply because at the moment of its destruction it is not being used and is not presently planned for use, conversion or rehabilitation. Such interpretation would leave as fair game even the homes included in the “Homestead” restoration projects in the cities, and historically valuable structures whose owners are undecided whether to rehabilitate them for posterity at some expense to themselves, or, impelled by the profit nature, raze them to ⁵⁰³ clear a potentially developable location. Such judicial imposition of unspoken legislative intentions would be absurd and we must not impute absurdity to legislative acts. State v. Fabritz, 276 Md. 416, 422 , cert. denied, 425 U. S. 942 .

Upon our failure to adopt this “intended for use” definition, appellant’s alternative contention seems to be that the structure burned must be “usable” or “capable of use” at the time of burning. But our reasoning as to its utility applies regardless of tense and we are not persuaded by his Carolina authority. Moreover, witnesses for both prosecution and defense referred to that which was burned as the “clubhouse”. The question then becomes, when is a clubhouse not a clubhouse?

The instant case does not provide us with facts from which we could conclude that this structure was no longer a “clubhouse”, and therefore was not a building. Dilapidated or not, used or unused, the “clubhouse” still stood, and the evidence further demonstrated that its steel-framed walls and roof had, just months prior to the burning, been used for the storage of various persons’ property. Such standing structures fall under the protection of our statute, and their unlawful burning is proscribed despite their present, past or future purpose. If the Legislature intended to restrict the protection of buildings to those “in use” or those with a contemporaneous intended use, it could more easily have added such clarifying words than can we in retrospect, and with far more right to have done so. — corroboration of accomplice testimony — Rather than abandoning the need for corroboration as in the federal practice, the Court of Appeals has reaffirmed its faith in the protective device of requiring corroboration for the testimony of an accomplice, Brown v. State, 281 Md. 241 .

The degree of protection designed to shield a defendant from vindictive reprisals from, or clemency benefits for, a perjuring State’s witness is substantially restricted by the fact that “[n]ot much in the way of evidence corroborative of the accomplice’s testimony [is] required....” Brown, supra, at 244 . This seems especially true when the trial judge ⁵⁰⁴ instructs a jury that a witness is a criminal accomplice as a matter of law. In exchange for having the jury sift the case for a grain of corroborative evidence, which identifies the defendant with the perpetrators of the crime or shows his participation in it, an accused faces an implicit judicial ruling that he is culpable since there may not be an accomplice without a principal. The effect of such a ruling is to tell the jury that the defendant is a principal and so is guilty but will walk away from the crime unless they find that golden grain of corroborative evidence.

Anno. Accomplices — Question of Law or Fact, 19 A.L.R.2d 1352 , 1356. Presumably, the appellant relied upon the absence of corroboration since he did not object to an instruction that Ms. Gorman was an accomplice as a matter of law and that, as such, her testimony required corroboration. Even here he overlooks the implication of guilt in the instruction and complains only that the corroborative testimony was insufficient.

The difficulty is with that which had to be corroborated. Appellant is charged as an accessory before the fact, i.e., not with committing an arson but of counseling or procuring it. Md. Code, Art. 27, § 7. His crime was in his conversation — not whether he had a conversation (which he readily admits), but what was conveyed thereby.

Appellant’s own brief points out the very narrow line between guilt and innocence as being dependent solely upon what words were said between the accused and his admitted accomplice. 4 “The one respect in which the facts were disputed was whether appellant instructed Gorman to have the clubhouse burned unlawfully rather than through a fire department. Gorman testified he did, and her testimony is the only evidence linking appellant to any instruction to burn the clubhouse unlawfully. Appellant denied giving any such instruction, and insisted his instruction was to ⁵⁰⁵ pursue burning through a fire department. Moreover, appellant testified that Gorman, herself, suggested the clubhouse be burned outside legal channels, but he refused.” In short, his words were his deeds and culpability lay in a prefix: was the fire he admittedly ordered lawful or unlawful?

Corroboration of the accused’s participation in so narrow and clandestine a criminal act such as appellant would have us demand, would require testimony from a witness who was privy to the conspiratorial conversation. If such were the law, few conspiratorial crimes or crimes of a counseling or procuring nature could be proven. But that which must be corroborated is not necessarily the precise criminal act itself, for such evidence would be sufficient in itself to convict. It will suffice if the independent evidence tends to establish with a satisfactory degree of cogency facts material and relevant which would justify a factfinder in crediting the accomplice’s testimony.

The evidence may corroborate lawful conduct if that conduct substantiates the presence of the accused at the scene of the crime. Wright v. State, 219 Md. 643, 649-652 , cert. denied, 361 U. S. 851 . Significantly, as pointed out in appellant’s brief, the crime with which appellant is charged is not the ultimate act of arson, but rather that of procuring such result through Ms. Gorman. “It is important to bear in mind that the crime for which appellant was convicted was aiding, counseling or procuring the burning. Admittedly, there was corroboration as to an unlawful burning.” It follows then, all that need be corroborated is Ms. Gorman’s testimony that appellant conversed with her regarding the burning of the building.

Appellant’s own testimony clearly does so: “Q. Mr. Brown, I believe you heard Mrs. Gorman testify that, from time to time, from about January, 1976, through March of Seventy-Six, there were ⁵⁰⁶ discussions as to the burning of the clubhouse which you and she had. Did you at any time give Mrs. Gorman any instructions with respect to having the clubhouse burned? A. Yes, I did. Q. And what were those instructions?

A. To vigorously pursue the burning of the clubhouse.” For purposes of corroboration it is of no significance that appellant completely denied either authorizing the burning without going through a fire department, or having authorized payment to the torchman. The factfinder must decide the truth or falsity of the divergent versions of the conversations which were the basis of the charge and he is free to believe all, part or none of appellant’s version and/or (once corroborated) all, part or none of the accomplice’s. In Re Appeal No. 1327, Term 1975, 32 Md. App. 478, 479-480 . “It has also been said that corroboration of a material point tending to connect the accused with the crime is sufficient for a jury to infer that the accomplice had testified truthfully even with respect to matters as to which there had been no corroboration.” Wright v. State, supra, 219 Md. at 652 . But for a confession, it is hard to conjure better corroborative evidence of a criminal conversation procuring an unlawful burning of a building than the admission of an accused that he did indeed insist that the transgressor “vigorously pursue the burning” of that building. — malice — Appellant’s next contention is that because the “only reason for the burning was to save demolition costs and not to injure anyone else or his property”, the State failed to prove malice within the meaning of Md. Code, Art. 27, § 7.

Although we reject the State’s responsive argument (based upon sentence structure) that malice is not a necessary ⁵⁰⁷ ingredient of the procuring aspect of the arson statute but applies only to the torchman, we find the record contains sufficient evidence of malice from which a jury could have concluded such to have been a part of the appellant’s mental state. Originally, the use of the terms “wilfully and maliciously” in the arson statutes was simply a means of codifying the state of mind required for common law arson. Perkins, Criminal Law Ch. 3, § 2, p. 220 (2d ed. 1969); cf. Butina v. State, 4 Md. App. 312 , cert. denied, 251 Md. 748 . However, even when that phrase is used in a statute, it is (as it was in common law) a mistake to assume that the phrase adds any requirement of proof not included in the word “malicious” alone. “An intentional act creating an obvious fire hazard to [a building], done without justification, excuse or mitigation, might well be characterized as ‘wilful’ (a word of many meanings), and would certainly be malicious, but as the law has developed it is a mistake to assume that the phrase ‘wilful and malicious,’ when found in the definition of common-law arson, adds some distinct requirement not included in the word ‘malicious’ alone.” (footnotes omitted).

Perkins, supra, at 218. We agree with appellant’s attempt to analogize malice in arson with that in homicide, and we find that Perkins does so as well; however, there the similarity ends. Appellant contends that malice means “ill will”, but Perkins clearly does not agree with that interpretation, nor do our own opinions. Perkins points out that: “ ‘The malice which is a necessary element in the crime of arson need not . . . take the form of malevolence or ill will,’ just as nothing of this nature is needed for malice in the law of homicide.” (footnote omitted).

Id. at 218. In Evans v. State, 28 Md. App. 640, 693 , aff’d 278 Md. 197 , ⁵⁰⁸ we quoted Perkins’ view of malice in homicide as he compared it with its meaning in a more colloquial context: “ ‘In ordinary conversation the word ‘malice’ conveys some notion of hatred, grudge, ill-will, or spite, but no such idea is incorporated in the legal concept of ‘malice aforethought.’ . . . this crime [murder] may be perpetrated without the slightest trace of personal ill-will----’” We also noted in Evans, supra, that as early as 1881, no less an authority than Mr. Justice Holmes pointed out in his Common Law that: