In re John A.

Lowe, J., delivered the opinion of the Court. Accused of delinquency, John A. was brought before the Circuit Court for Cecil County sitting as a juvenile court to defend against two charges. The acts with which he was accused would have constituted, if proven against an adult, the crimes of trespass and daytime housebreaking with the intent to steal. 1 The evidence indicated that one rainy afternoon John A. had entered what appears to have been an unoccupied summer cottage at Crystal Beach. While there he admitted having smoked a cigarette.

John A. left and went to “Big Bills, Bill Johns”, from whence he subsequently saw smoke coming from the cottage. Sensing responsibility for the fire, he alerted Big Bill to help and had a neighbor call the fire company. Although appellant’s admission placed him within the premises, there was no evidence that he had “been duly notified not to so enter”; consequently the chancellor dismissed the trespass charge. But despite the evidence of breaking having been circumstantial and inferentially slim, the chancellor found John A. delinquent for having broken into the dwelling house — “with the intent to commit a certain felony therein, to wit: intent to steal, take and carry away the goods, ⁴⁷⁸ chattels, monies and properties ... valued at One Hundred Dollars, and upwards____” 2 In that regard, the chancellor inferred that simply because such chattels were present in the house, appellant’s intent upon entering the premises was to steal.

The issue on appeal narrows to just that point, i.e., the necessary ingredient of proof of a burglarious intent. See Martin v. State, 10 Md. App. 274, 276 (1970). The State relies on a single case, Clemons v. State, 228 Md. 237, 238 (1962), which it points out “held that where the circumstances of the breaking and entering showed no other motive, a larcenous intent may be inferred.” Clemons is a single page per curiam which may be read to so hold, if viewed in a void. But in Clemons there is the additional factor that the accused was caught or interrupted on the premises in flagrante delicto.

It is apparent that so intangible a proof as one’s intent may — if not must — be inferred in most cases from a more provable circumstance. The Court of Appeals in Felkner v. State, 218 Md. 300, 307 (1958), has reiterated the permissibility of such inference. “Felonious intent is an essential element of burglary at common law and under statutes requiring such intent. The felonious intent like any other element of the crime must be proven. The proof need not be direct but may be inferred from the circumstances.” The court pointed out the obvious: “The most conclusive evidence that the breaking was with the intent to steal is the larceny itself,” ⁴⁷⁹ and the not so obvious, “although intent may exist and be proven although nothing in fact is taken.” Expanding upon that in Ridley v. State, 228 Md. 281, 282 (1962), the Court later explained that: “The actual intention at the time of the breaking is controlling, not whether any goods of value were found and stolen, and the intention may be inferred from the circumstances.” To read these excerpts in the abstract would lead to the conclusion drawn by the State from the Clemons per curiam, that is, that one may infer from a breaking into a dwelling, the purpose was to steal the contents.

But if such is law, there would be in reality no requirement upon the State to prove intent in a burglary or daylight housebreaking. The proof of breaking and entering would suffice. Such is not the law. Felkner itself pointed out that “there must be proof of some fact or circumstance or act or declaration of the prisoner in addition to the proof of the mere breaking and entering from which the trier of the facts can find the intent.” Id. at 307 .

(Emphasis added). The inference that is permissible is in the nature of a Thayer-Wigmore “bubble” presumption; except that a presumption is a rule of law, an inference a rule of reason. A presumption arises by law without regard to reasonableness upon proof of prescribed facts and must be considered unless