Butina v. State

Orth, J., delivered the opinion of the Court. The appellant was found guilty of statutory arson by a jury in the Circuit Court for Prince George’s County and sentenced to imprisonment for a term of 10 years. I The appellant was convicted of the crime proscribed by Md. Code (1967 Repl. Vol.) Art. 27, § 6, which provides in relevant part: “Any person who wilfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any dwelling house * * * whether the property of himself, or of another, shall be guilty of arson, and upon conviction thereof, be sentenced to the penitentiary for not less than two nor more than twenty years.” At common law the felony of arson is the malicious burning of the dwelling house of another.

Clark and Marshall, Law of Crimes, 6th Ed., § 13.09, p. 893; Perkins, Criminal Law (1957), Ch. 3, § 2, p. 172. The statute enlarges the common ³¹⁷ law meaning of arson as by its provisions a person commits arson if he wilfully and maliciously either (1) sets fire to or burns or causes to be burned a dwelling house (and other property that is parcel thereto designated by the statute), or, (2) aids, counsels or procures the burning. Thus, although at common law a person not actually or constructively present who “aids, counsels or procures the burning” is an accessory before the fact, under the statute he is a principal to the arson. This was the conclusion reached by the Court of Appeals in Wimpling v. State, 171 Md. 362 .

The Court said that although it is consistent with the language of the statute that one may be guilty of arson if he has counseled the burning even though there has been no actual burning, page 370, it may be assumed that in the use of the word “counsel” the legislature meant to “counsel” the burning or setting fire to a dwelling house which in fact has been burned or which has been set on fire. Thus while at common law one who aids, counsels or procures another to wilfully and maliciously set fire to a dwelling house is an accessory, by the statute he is made a principal, his act in so counseling, aiding, or procuring is in itself a substantive offense, page 371, and he is subject to the same punishment as though he himself had actually perpetrated the burning, page 369. Since under the statute two separate substantive offenses of arson are defined, it follows that to be validly convicted a person must be properly charged with the offense of arson which the evidence shows he committed. So if he, in fact, set fire to or burned or caused to be burned a dwelling house, he cannot be convicted on a charge that he aided, counseled or procured the burning, and vice versa.

But in considering the offense which he in fact committed, consideration must be given to the distinction at common law between principals and accessories, for even though the statute makes a person a principal who at common law would be an accessory before the fact to arson, 1 we think that a person may be convicted of setting fire to or burn ³¹⁸ ing or causing to be burned a dwelling house only if he would have been a principal at common law and that he may be convicted of aiding, counseling or procuring the burning only if he would have been an accessory before the fact at common law. Under the common law, parties to a felony are classified as principals or accessories. Principals in the first degree are those who commit the deed as perpetrating actors, either by their own hand or by the hand of an innocent agent. Persons present, actually or constructively, aiding and abetting the commission of the crime, but not themselves committing it, are principals in the second degree.

Accessories before the fact are those persons who abet, procure, counsel, or command the deed perpetrated, but who are not present, actually or constructively, at such perpetration. Agresti v. State, 2 Md. App. 278, 280 . But in this State there is no practical distinction between principals, in the first and second degree. Vincent v. State, 220 Md. 232, 239, note 1 .

If the evidence shows that an accused was present, actually or constructively, aiding and abetting the setting of the fire or the burning or the causing to be burned, even though he did not commit the crime himself, thus being a principal in the second degree, he could properly be convicted on a charge that he wilfully and maliciously set fire to or burned or caused to' be burned the property. See Thornton v. State, 232 Md. 542, 544 ; Veney v. State, 225 Md. 237, 238 . We do not find it to be the law of this State, that an accused must be specifically charged as a principal in the second degree. ³¹⁹ The indictment returned against the appellant charged under the statute that he “* * * did feloniously, wilfully and maliciously set fire to and burn a certain dwelling house, the property of James Henry Thomas * * He was charged, therefore, with the first offense proscribed by the statute and the charge would be proper if the evidence showed that he was either a principal in the first or second degree at common law, that is to say if he himself perpetrated the crime or was present, actually or constructively, aiding or abetting its commission. The charge would not permit the conviction if the evidence showed that he was an accessory before the fact at common law (the second offense proscribed by the statute), that is to say if he aided, counseled or procured the burning without being actually or constructively present.

The appellant alleges that by the evidence the acts he committed showed him to be an accessory before the fact at common law and he contends that, therefore, the indictment was “defective and should have been quashed.” Even if the evidence adduced at trial so showed, the appellant was not entitled to have the indictment dismissed. The indictment charged him with acts coming fully within the statutory description, in the substantial words of the statute, sufficient to apprise him with reasonable certainty that he was accused of committing arson. Dortch and Garnett v. State, 1 Md. App. 173, 176 ; Wimpling v. State, supra, 368. It was sufficient on its face.

The contention as framed and argued goes to the sufficiency of the evidence before the grand jury but we held in Wilson v. State, 4 Md. App. 192 , that an indictment may not be challenged on the ground that there was insufficient evidence before the grand jury. The proper question here is whether there was a variance between the allegata and the probata. If so, the appellant would have been entitled to the grant of his motion for judgment of acquittal made at the conclusion of all the evidence, but not to a dismissal of the indictment. So we must review the evidence before the jury.

About 1:00 A.M. on 10 July 1967 Norman M. Thomas was in bed in his frame dwelling house at 611 8th Street, Laurel, Md. when he heard the motor of a car racing. He got up and, looking out the window, saw “an old model black car maybe ³²⁰ a Dodge or Plymouth” on the road alongside the house. 2 He went back to bed. “Then I heard this fuming sound, like a whoosh, and when I looked out the back window, that is when the flames were all over the back of the house.” He ran downstairs through the kitchen and saw the flames coming through the kitchen window. “I knew then the house was on fire.” He ran out the front door and saw a “white man run across the road to the automobile.” The car drove away, proceeding west toward uptown Laurel. “I hollered back in the house to my young daughter and told her to try to get the kids out of the house and there was fire and they were all asleep.” He was able to put the fire out with the help of a neighbor. Merle Cole, the night manager of a gasoline station in Laurel, testified that in the early morning hours of 10 July an old Plymouth car came into the station. “They came in * * * said they were out of gas, asked if I had a can and I told them yes, and I went to my car and got a can * * * and filled it with gas (two gallons) and gave it to them.” The can was put in the car; the gas was not poured into the car’s gasoline tank. He identified a can found by the police near the scene of the arson as similar to the can put in the car.

Richard Reedy was in the station when the car pulled in. He recognized the car as belonging to a Bill Neilson but when he went over to the car, he did not see Neilson. He saw two men in the car, and identified the appellant as the driver. They got two gallons of gas in a can and pulled out.

Officer Gerald Hall of the Laurel Police Department responded to a call in the morning hours of 10 July and went to the Thomas house. Thomas showed him the damage to the house and gave a description of the car “as early model 1949 or 1950 * * * Dodge or Plymouth, black in color.” The officer knew that Neilson owned a car answering that description. The officer went to a shopping center near the intersection of Fourth and Montrose Avenues where he had seen the car on other occasions. As he drove around the shopping center he saw a black 1952 Plymouth pull up at the intersection.

He asked the appellant, who was driving, for his operator’s license and the ³²¹ registration card. The appellant showed him his operator’s license and at first said he did not have the registration card, but then he found it in the glove compartment. The appellant was not arrested. Officer Wallace Mitchell of the Laurel Police Department also responded to the call and went to the Thomas house.

He observed the damage and made a report. About 40 minutes after he left Thomas he responded to a call and went to the intersection of Fourth and Montrose Avenues. Hall, the appellant, and another man were standing by a 1952 Plymouth. The appellant showed the officer his operator’s license and a registration card in the name of Janice Neilson.

The appellant was permitted to leave. He had made no statement regarding the fire. Officer Juergen Ervin of the Laurel Police Department testified that the investigation of the fire was turned over to him by the Chief of Police on 14 July. He found that the husband of Janice Neilson had not been interviewed, went to his residence on 15 July and talked to him in the presence of Mrs. Neil-son.

He went back later that day and requested Neilson to accompany him to the police station. At the station Neilson made a statement and thereafter was charged with arson. Warrants charging arson were obtain for the arrest of the appellant and two other men. The appellant was located about 7:30 P.M. on 15 July near his home.

Ervin read the warrant to him and the appellant read it himself. Thereupon Ervin “advised him he had a right to remain silent. Anything you say can be used against you in a court of law. You have a right to talk to a lawyer and to have him with you during questioning.

If you cannot afford a lawyer one will be appointed for you before a statement is taken if you wish. If you decide to give a statement you still have the right to stop at any time so you may talk to a lawyer.” Ervin asked him if he understood his rights and what had just been explained and he replied that he did. He was asked if he was willing to make a statement without the presence of a lawyer and replied, “Yes.” He was asked, “Have any promises, threats or inducements been made to pressure or coerce you into making this statement” and he replied, “No.” Ervin took the appellant to the police station. On the way Ervin said nothing to the appellant and the appellant said ³²² nothing to Ervin.

At the station a document was read to the appellant again stating the rights set forth in Miranda v. Arizona, 384 U. S. 436 . It concluded: “Waiver of rights. I have read the statement of my rights and understand what my rights are. I am willing to make a statement and answer questions.

I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me. No pressure or coercion of any kind has been used against me.” The appellant signed this document and then gave the police a statement which was reduced to writing and signed by him.

At the trial, counsel for the appellant cross-examined Ervin as to the voluntariness of the statement but offered no evidence with regard thereto. The trial court found that the statement was given by the appellant “voluntarily, knowingly and intelligently” and admitted it in evidence. 3 The statement showed that the appellant was asked by the police to tell what happened on 10 July with reference to the burning of Thomas’ dwelling. He said: “A. On early Monday morning about 1:00 A.M. 7-10-67, I met Paul White, Neilson, Don Kemper, and Pressley, 4 who were in a 1952 Black Plymouth, owned by Neilson, at the Laurel Swimming Pool, at the end of Main St. At that time Neil-son asked me to go to a party, at which time I mounted Neilson’s vehicle, and took control of same, as Neilson asked me to Drive his vehicle. We left the Pool, as we arrived at Main and 9th St, Paul White said, make a right here at 9th St, and go down to the Grove area, When we arrived at the Laurel Grove Ave 8th St and Rt 198 ³²³ (Talbott Ave.) White said pull over, we are going to Set the House on Fire, meaning 611 8th St, Laurel Md. I told him no, dont set the House on Fire, because I knew Mr. Thomas.

Paul then said pull over I and Kemper, we have to go to the Bath room I stopped the vehicle on Rt 198 (Talbott) and 8th St, Laurel Md. When I had stopped, Paul White and