Chambers v. State

³⁴¹ Anderson, J., delivered the opinion of the Court. The appellant, Eulis Chambers, was convicted of the crimes of attempted arson and possession of a Molotov cocktail in the Criminal Court of Baltimore by Judge Anselm Sodaro, sitting without a jury. He was sentenced to two years and three years, respectively, under the jurisdiction of the Department of Correction, the sentences to run consecutively. Two questions are presented in this appeal: 1.

Whether there was a merger of the two offenses of which the appellant was convicted ? 2. Whether there was sufficient evidence to sustain the conviction of possession of a Molotov cocktail? At trial Private First Class Lawrence Davis testified that he was a member of a National Guard unit which had been activated for duty in Baltimore on April 7, 1968, and that he was on duty in Baltimore on the evening of that date. Fie stated that at 8:30 or 9:00 p.m. he was riding standing in the back of a ¡bj ton truck, which had no top, patrolling eastward on Biddle Street.

As the truck passed through the intersection of Biddle and Caroline Streets, he saw two men “slouched over” in the doorway of a certain school building at the corner of the intersection. Davis saw these men, whom he identified at trial as the appellant and one Lee Wearthy, light a “Molotov cocktail.” Davis described the object, which he referred to as a “Molotov cocktail,” as being a whiskey bottle half filled with a liquid, which he determined to be gasoline, and with a lighted cloth wick in the top of the bottle. Davis apprehended the two men approximately one-half block from the scene and brought them back to the doorway. At the time of the return to the doorway the bottle was standing against the door, which was wooden with glass panes, and the wick was still lighted.

Davis testified that he could see no damage to the door. The appellant denied any involvement in the crimes and testified that at about 3 :45 p.m. on April 7, 1968, he left his house at the corner of Caroline and Preston Streets. He met Wearthy (the co-defendant) on the street and asked him to accompany him to a restaurant to get something to eat. They walked down ³⁴² Caroline Street, past the school building on the opposite side of the street, and continued walking for another one and one-half blocks, where they were arrested.

I The appellant asserts that the crimes of which he was convicted should have been considered merged because the evidence showed that the attempted arson was by means of the Molotov cocktail. This Court has stated that: “The true test [of merger] under the modern doctrine is whether one crime necessarily involves the other. Tender v. State, 2 Md. App. 692 . That is to say, when the facts necessary to prove a lesser offense are essential ingredients in establishing the greater offense, the lesser offense is merged into the greater offense.

Dunlap v. State, 1 Md. App. 444 .” Beard v. State, 4 Md. App. 685, 686, 244 A. 2d 906 (1968). Maryland Code (1967 Repl. Vol.), Art. 27, § 139A prohibits the possession of any device commonly known as a gasoline bomb or a Molotov cocktail. Article 27, § 10 prohibits attempts to set fire to or burn certain kinds of buildings and provides that placing any device in a building in an arrangement or preparation with intent to eventually wilfully and maliciously set fire to or burn the building shall constitute an attempt to burn such building.

It seems clear to us that the one crime is a crime of possession, while the other is a crime of use, action and intent. To prove the § 139A offense it is necessary to show mere possession of the specified object, regardless of the purpose