Farley v. State

Per Curiam. Appellant, together with one Donald Prendergast, was charged under a two-count indictment with attempted store-housebreaking with intent to steal goods over the value of $100.00, and with being a rogue and vagabond. Tried separately, appellant was convicted on both counts and sentenced to three years for the attempted storehousebreaking and eight months on the rogue and vagabond count, the sentences to run concurrently. On this appeal, appellant contends (a) that the evidence was insufficient to sustain the conviction, and (b) that the court erred in convicting him of being a rogue and vagabond, since that count merged into the conviction of attempted storehousebreaking.

The evidence adduced at the trial showed that the police received a call at 3 :30 a.m. on January 23, 1966, alerting them that someone was attempting to break into a Rexall drugstore-at a specified location in Frederick, Maryland. Two police officers immediately went to the scene, Sergeant Wheelson going to the front of the store, and Officer Boone going to the rear through an alley separating the store from an apartment house. It was snowing at the time and had been for some hours before the officers were called to the scene. Officer Boone observed a set of footprints in the snow which led from the street into the alley.

He further observed that the bars of a window in the- ⁵⁸⁷ drugstore had been pried apart and that a car jack was lying on the ground under the window. As he proceeded further into the alley, Officer Boone heard a thump-like noise and saw a large screwdriver fall to the ground at the rear portion of the alley. He observed appellant standing about three feet from where the screwdriver had fallen upon the ground—a point about ten feet from the drugstore. Appellant was arrested and a search of his person revealed an operational walkie-talkie radio.

A further investigation disclosed the fact that the footprints which Officer Boone had observed in the alley led directly to an automobile later ascertained to belong to appellant. The evidence further indicated that the drugstore’s inventory was in excess of $15,000.00. That the evidence was sufficient to sustain the conviction of attempted storehousebreaking is too clear to require extended