Fields v. State

Lowe, J., delivered the opinion of the Court. Appellant was convicted in the Circuit Court for Baltimore County and sentenced to two consecutive 18 month prison terms, for storehouse breaking and stealing (Md. Ann. Code (1957, 1976 Repl. Vol.), Art. 27, § 33) and storehouse breaking with intent to steal (Md. Ann. Code (1957, 1976 Repl. Vol., 1981 Cum.

Supp.), Art. 27, § 33A). He contends here that his conviction for storehouse breaking with intent to steal must be reversed because "the trial court convicted and sentenced appellant twice for storehouse breaking — once for having the intent to steal, and once again for stealing.” We conclude, however, that while it is not reversible as such, we should, in the interests of justice, merge those offenses to avoid double punishment for a single offense. A conviction under the relevant portion of § 33A requires proof of the elements of a breaking with intent to steal money, goods or chattels under the value of $300. 1 Section 33, however, requires a breaking and "'... a larceny amounting in value to $5.00 or more.’ ” Garner v. State, 16 Md. App. 353, 361 (1972), quoting Hyman v. State, 4 Md. App. 636, 642 (1968) (emphasis added). Each offense appears to require proof of an element that the other does not (i.e., the intent requirement in § 33A and the larceny requirement in § 33), and they are, therefore, distinct crimes.

Fabian v. State, 235 Md. 306, 314 (1964). That case clearly holds that those two offenses are "separate crimes,” as indicated by the trial judge in this case: "No, they’re completely separate crimes. One is the breaking and entry of the building with the ⁷¹⁹ intent to steal, and the actual consummation of the theft is a different and separate crime. That has clearly ruled out.

I can’t cite the case, but I know that to be true from the time immemorial.[ 2 ] If you break and steal, two different crimes are committed.” But Fabian determined only that those two offenses had "no inconsistency”. It did not hold that there was "neither 'inconsistency’ nor 'illegality’ in the imposition of separate penalties ...” as argued by the State. The issue of merger with which we chose to treat this matter, was not addressed in Fabian because, as the Court twice noted, no sentence had been imposed upon the "intent” conviction. Brooks v. State, 284 Md. 416, 419 (1979), on the other hand, did not directly address the academic Fabian issue but sought to decide what Fabian had not; whether convictions should be merged if they rested upon substantially identical "actual evidence”.

Although Brooks did hold that the "required evidence” test (whether each offense requires proof of an element which the other does not) was appropriate for merger determinations in most instances, it clearly left open an escape valve for the more obvious exceptions; i.e., where it is clear that the Legislature did not intend that separate sentences be imposed for two offenses arising out of the same transaction. Brooks, supra, at 423 . That valve was kept open by repetition the year after Brooks espoused it, emphasizing by such repetition so soon thereafter, that we should carefully consider merger in obvious situations of duplicate punishments. "The imposition of multiple punishment, however, is often particularly dependent upon the intent of the Legislature.

Just last year in Brooks v. State, supra, 284 Md. at 423 , it was pointed out that, although the required evidence test is the normal standard for deciding the allowability of separate ⁷²⁰ sentences, the Legislature may not in certain circumstances intend that separate sentences be imposed for two offenses growing out of the same transaction, even though the two offenses are clearly distinct under the required evidence test.”. Whack v. State, 288 Md. 137, 143 (1980). Because it is difficult, if not nigh impossible, to conjure a case where a thief might break and enter, and steal without having an intent to do so, it is apparent that the Legislature was providing in § 33A for an instance of a crime commenced but not completed, rather than penalizing one who intended to steal what he does steal as an aggravation of simply breaking without intent to do that which he ultimately accomplished. To assume the latter would presuppose a prior intent by the Legislature when it enacted § 33, that breaking and stealing was considered by the Legislature to be a non scienter crime, and that, if course, is absurd.

The Legislature will not be interpreted as intending absurdities. Francois v. Alberti Van & Stg. Co., 285