Dortch v. State

Morton, J., delivered the opinion of the Court. Shortly after midnight on October 8, 1965, the Appellants, 'Terry E. Dortch and Rudolph T. Garnett, were observed by -police officers in a stair-well at the basement entrance of St. Michaels and All Angels Episcopal Church located at 2001 St. Paul Street, Baltimore, Maryland. One of them was kicking ¹⁷⁵ in a panel door leading to the undercroft of the building. Thereafter they endeavored to pry out the panel with their hands at which time the officers told them to come out of the stairwell with their hands up.

Garnett was immediately taken into custody but Dortch, upon reaching the top of the stairs leading from the basement, hesitated for a moment and then fled. One of the officers was “pretty sure I recognized his [Dortch’s] face.” Two days later he viewed a photograph “to be positive in my identification of the subject face * * * who I observed at the Church.” He then obtained a warrant for Dortch, who, in the company of his lawyer, surrendered to the police the next day. The Appellants were convicted in the Criminal Court of Baltimore, without a jury, on June 9, 1965, of attempted burglary under the second count of the indictment, and sentenced to five years imprisonment. In this appeal, the Appellants contend that: 1.

They were charged and convicted of a crime that neither exists at common law or by statute. 2. The identification of Dortch was inadmissible. In the indictment, the Appellants were charged with attempting to burglarize “the dwelling house of God” located at 2001 St. Paul Street. The evidence produced at the trial showed the premises to be owned by St. Michaels and All Angels Episcopal Church, a body corporate.

I. It is definitely established in this State, at least, that a church can be the subject of the common law crime of burglary, McGraw v. State, 234 Md. 273 (1964), cert. den. 379 U. S. 862 . It is argued on behalf of the Appellants, however, that the phrase “dwelling house of God” does not carry the meaning “church” so as to bring this case within McGraw, supra. The word “Church” according to the Webster’s Third New International Dictionary, page 404, is derived from the Greek word kyriakon, short for kyriakon doma and is translated as “the Lord’s house.” For an extended discussion of the derivation, see Encyclopaedia Britannica (1959 edition, page 669). ¹⁷⁶ Roget’s Thesaurus (1962 edition, page 661) sets forth the expression “God’s house” as an alternative expression for the word “church.” In McGram, supra, Judge Henderson (later Chief Judge) examines in detail the common law crime of burglary as it relates to churches. He quotes from Lord Coke’s third institute (1817 Ed. page 64) : “If a man do break and enter a church in the night, of intent to steal * * * this is burglary, for ecclesia est domus mansionalis omnipotentis Dei.” Historically, therefore, the expression “dwelling house of God” would seem to be substantially synonymous with the word “church.” But even in modern day usage it seems apparent that to the ordinary citizen, irrespective of his faith, or lack of faith, the words “dwelling house of God” purport to mean a “church.” Members of the clergy often refer to the church edifice as the dwelling house of God and their parishioners have no trouble in comprehending the use of the phrase.

Moreover, the record indicates that counsel for the Appellants in the lower Court consistently refers to the premises which were the subject of the attempted burglary as “the church.” We are of the opinion, therefore, that the