Grimes v. State

Eldridge, J., delivered the opinion of the Court. In May 1978, when the offense involved in this criminal case took place, Maryland Code (1957, 1976 Repl. Vol.), Art. 27, § 32, provided that one convicted of "breaking a storehouse . . . with an intent to commit murder or felony therein, or with the intent to steal... goods of another of the value of’ $100.00 or more shall be guilty of a felony and subject to imprisonment not exceeding ten years. 1 At the same time, Art. 27, § 342, provided, inter alia, that if one "shall break into any shop, storehouse... with intent to steal any money, goods or chattels under the value of’ $100.00, he ²³⁸ is guilty of a misdemeanor and subject to imprisonment for not more than eighteen months. 2 The defendant, Garett Nicholas Grimes, was charged in a two count indictment by a Montgomery County grand jury with violating Art. 27, § 32. The first count charged that the defendant, on May 22, 1978, "unlawfully did break the storehouse, the premises of Paul Darroch T/A Wildwood Manor Barber Shop, located at 10227A Old Georgetown Road, Bethesda, Montgomery County, Maryland, with intent to commit a felony therein, in violation of Article 27, Section 32 . . . .” The second count accused Grimes of an attempt to break the same storehouse with an intent to commit a felony therein, in violation of Art. 27, § 32.

At the trial in the Circuit Court for Montgomery County, the defendant’s motion for judgment of acquittal on count two, the attempt charge, was granted. As'to count one, the court, at the prosecutor’s request and over the defendant’s objection, instructed the jury that the charge of storehouse breaking with intent to commit a felony, in violation of Art. 27, § 32, included within it the charge of storehouse breaking with intent to steal goods worth under $100.00, in ²³⁹ violation of then Art. 27, § 342. The jury was authorized to convict Grimes of the § 342 misdemeanor even though that offense was not specifically charged in the indictment. Grimes was found guilty under Art. 27, § 342, and was sentenced to eighteen months' imprisonment.

The Court of Special Appeals affirmed, holding that "a charge under § 32 carries with it a charge under § 342” and that "fa]ppellant was indeed charged with the crime of which he was convicted.” Grimes v. State, 44 Md. App. 580, 585, 586 , 409 A.2d 767 (1980). The intermediate appellate court initially pointed to the proposition adopted by that court in Johnson v. State, 38 Md. App. 100, 109 , 379 A.2d 436 (1977), that "conviction of a necessarily included lesser offense is permissible under a document charging a greater offense.” After reviewing several of this Court’s opinions dealing with §§32 and 342, however, the Court of Special Appeals stated ( 44 Md. App. at 584-585 ) that § 342 cannot be regarded as a lesser included offense of § 32. The court took the position, based on the history of the two statutes, that they are not different offenses but represent different degrees of the same offense. The Court of Special Appeals thus stated (id. at 585): "We traced the history of these two provisions in Prevatte v. State, 40 Md. App. 623 (1978).

We there pointed out that the original storehouse breaking offense, as enacted by the General Assembly in 1809, made no distinction between an intent to commit grand or petit larceny. Both were then felonies, and what the statute prohibited was storehouse breaking with intent to commit a felony. Only when, in 1933, the Legislature made petit larceny a misdemeanor did it become necessary, in order to maintain the existing ambit of the storehouse breaking offense, to divide it into two sub-offenses — one where the intent was to commit a felony (including, of course, grand larceny) and the other where the intent was to commit only petit larceny, now a misdemeanor. ²⁴⁰ "From this history, and from a simple analysis of the two statutes, it seems clear that they involve not different offenses but the same offense in different degrees. . ..” The court concluded that its holding in Johnson , regarding greater and lesser included offenses, would also apply to different degrees of the same offense. Thus, under this ruling, one charged under one statutory provision may be convicted under another statutory provision if the latter is held to be a lesser degree of the same offense.

We granted the defendant’s petition for a writ of certiorari in order to determine the validity, under Maryland law, of the general proposition adopted by the Court of Special Appeals in Johnson v. State, supra, 38 Md. App. at 109 , and in the present case, namely that a defendant charged with one offense may be convicted of any lesser included offense, or any lesser degree of the same offense, even though the lesser included offense or lesser degree is not mentioned in the charging document. However, upon further consideration, we believe that the validity of this general proposition cannot be decided in the present case. With regard to a storehouse breaking with intent to commit larceny, the relationship of § 342 (now 33A) to § 32 is neither that of a lesser included offense nor a lesser degree of the same offense. Whatever may be the rule with respect to other related statutory offenses, as to these two sections one cannot be convicted under one if he is charged only under the other.

In Johnson v. State, 223 Md. 479 , 164 A.2d 917 (1960), the defendant was charged in count one of the indictment with breaking a storehouse with intent to steal goods valued at $25.00 or more, which was then the monetary minimum set forth in Art. 27, § 32. Between 1952 and 1960, and at the time of the offense in Johnson, there was a degree of monetary overlap between § 32 and § 342, as the latter statute then covered an intent to steal goods under the value of $100.00. A charge that the defendant broke a storehouse with the intent of stealing goods valued at more than $25.00 ²⁴¹ but less than $100.00 may have then stated an offense under either statute. Consequently, if count one of the indictment in Johnson had stood alone, it could at that time have charged an offense under either § 32 or § 342.

However, in count two of the indictment in Johnson, the defendant was charged with larceny of the same goods, valued at $142.00. The defendant pled guilty to count one and was sentenced to five years’ imprisonment. He then attacked the conviction, arguing that count one also charged an offense under § 342, that the maximum prison sentence under § 342 was only eighteen months, and that he intended to plead guilty to a § 342 offense. In rejecting this argument, this Court pointed to count two of the indictment which informed the defendant that the value of the goods involved was $142.00. 223 Md. at 482 .

In light of this valuation, the Court held that the indictment plainly charged a violation of § 32 and not a violation of § 342. The Court stated that, except within the area of monetary overlap then existing, §§32 and 342 were "complementary and mutually exclusive.” Id. at 481. See also Vandegrift v. State, 226 Md. 38 , 41 n. 1, 171 A.2d 713 , 91 A.L.R.2d 507 (1961) (indicating that when the charge was breaking with intent to steal goods, it would encompass a violation of both § 32 and § 342 only if the value alleged fell within the area of overlap existing between 1952 and 1960, in which case the sentence would be limited to the maximum specified in § 342). Although in a different factual context, Johnson v. State clearly holds that a charge under § 32, beyond the monetary maximum set forth in § 342, does not also encompass a charge under the latter statute.

Thus, the decisions of the trial court and the Court of Special Appeals in the present case cannot be reconciled with the position previously taken by this Court. Wersten v. State, 232 Md. 164 , 192 A.2d 286 (1963), is also inconsistent with the idea that, with respect to storehouse breaking with an intent to commit larceny, § 342 is a lesser included offense or a lesser degree of the same offense as § 32. The defendant in Wersten was charged in the first count with breaking a storehouse with intent to steal ²⁴² property worth $100.00 or more in violation of § 32, and in the second count with breaking into a storehouse with intent to steal property worth less than $100.00 in violation of § 342. In a nonjury trial, the defendant was found guilty on both of these counts, and, on appeal, he contended that the verdicts were inconsistent