Johnson v. State

Moylan, J., delivered the opinion of the Court. The appellants, James Arthur Garrett, William Elmer Johnson and Lancelot Ward, were all convicted in the Circuit Court for Calvert County by Judge Perry G. Bowen, Jr., sitting without a jury, of (1) conspiracy to break into a dwelling house with intent to steal property of the value of less than $100; (2) conspiracy to steal goods of the value of less than $100; and (3) roguery and vagabondage. Johnson and Ward have joined together in one joint appeal. Garrett has filed a separate appeal.

Between the two appeals a number of issues have been raised: (1) Whether the trial judge abused his discretion in denying Garrett a Motion for Continuance. (2) Whether the charge of “conspiracy to break and enter the dwelling house of another with the intent to steal property of the value of less than $100” invalidly charges a conspiracy to commit a nonexistent crime. (3) Whether the search of the trunk of the automobile in which all three appellants were arrested was unconstitutional under the Fourth and Fourteenth Amendments to the United States Constitution. The remaining issues, though somewhat distinct, ail relate generally to the sufficiency of the evidence.

Denial of the Motion for a Continuance The appellant Garrett was indicted, along with his co-defendants, on July 2, 1969. On July 14, 1969, Xavier Aragona filed his appearance for Garrett, Ward and Johnson. On that same day, Garrett was released on bail. On the morning of trial, October 14, Mr. Aragona requested a continuance for Garrett on two grounds: (1) That he himself had had difficulty in locating the appellants and had therefore not had an adequate opportunity to prepare the case, and ⁶⁵⁶ (2) That a co-counsel for all three appellants, Robert J. Woods, had only entered his appearance that morning.

The State’s Attorney for Calvert County pointed out to the Court that after several earlier attempts to arrange a trial date with defense counsel, the October 14th date had been agreed upon. He indicated to the Court that the October date had been set for “well over a month”. In denying the Motion for a Continuance, the trial judge pointed out that defense counsel had had adequate time and notice to prepare the case and that the appellants had “had the advice and counsel of an able and competent member of the Bar practicing in this Court for a substantial period of time”. He pointed out that the State and the public have a right to the speedy and prompt disposition of criminal charges, just as does a criminal defendant.

He pointed out that it is the established practice in the courts of his (the Seventh) Circuit to try criminal cases within a ninety-day period of arrest, wherever possible. • As this Court pointed out in Clark and Richardson v. State, 6 Md. App. 91 , 100-101: “There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process; the answer must be found in the circumstances present in a given case.” We find no arbitrary abuse of discretion in this case. Adequacy of the Conspiracy Charge The contention of all three appellants as to the adequacy of the conspiracy charge under the fourth count is disingenuous. That count charged that they: “unlawfully did conspire together to break into the dwelling house of Joseph William Tony Horsmon, there situate, with intent feloniously to steal, take and carry away certain goods, chattels, monies and properties of the said Joseph William Tony Horsmon, of the value of less than One Hundred Dollars ($100.00) . . .” ⁶⁵⁷ The appellants’ claim is that the stated object of the conspiracy is not an indictable crime. Such is not the case.

There can be no doubt that the appellants clearly knew that they were charged with a conspiracy, the predicate of which was the commission of daytime housebreaking in contravention of Art. 27, Sec. 30(b), 1957 Code (1967 Repl. Vol.). The words “the dwelling house of Joseph William Tony Horsmon” make patent that the contemplated crime was a housebreaking under Art. 27, Sec. 30(b), rather than a storehouse breaking under either Sec. 32 or Sec. 342. The absence of any allegation as to the nighttime or as to an entering makes it clear that it was housebreaking that was charged and not common law burglary or statutory burglary.

The language “. . . of the value of One Hundred Dollars ($100.00) and upwards” under the second count, as to which the motion was granted, and “. . . of the value of less than One Hundred Dollars ($100.00)” under the fourth count, upon which the conviction was had, is, to be sure, language reminiscent of Secs. 32 and 342. As to the housebreaking charge before us, under which the intent to steal goods of any value will suffice, the distinction made between the second and fourth counts was a completely superfluous one. But under either of the counts, although the language was inartful and laborious, the necessary larcenous intent was clearly set forth. “Of the value of $100.00 and upwards” is by definition “of some value.” “Of the value of less than $100.00” is equally as clearly “of some value.” Of the charge in question, no more was required. If anything, the count before us said more than it had to, not less.

See Putnam v. State, 234 Md. 537 ; Hickman v. Brady, 188 Md. 103 ; and Reagan v. State, 4 Md. App. 590 . The formal requirements of draftsmanship, to be sure, have a salutary purpose in informing a defendant of the precise accusation he is called upon to answer. They may not be conceived of, however, as an invitation to a linguistic chess game in which a party may poise himself ⁶⁵⁸ ready to pounce the moment an unwary opponent leaves his King unguarded. The search for truth is too fundamental to be so hypertechnically side-tracked.

For honest confusion,, adequate remedies are readily available. Both Putnam, supra, and Reagan, supra, point oiit that the appellants, had they suffered real doubts, could have 1) challenged the sufficiency of the indictment under Maryland Rule 725b, 2) demanded a bill of particulars nnder Maryland Rule 715a and/or 3) moved for discovery and inspection under Maryland Rule 728. They did none of these, and obviously had no need to. There is an additional thrust to the appellants’ argument: It is nót simply that the fourth count did not say ■enough to put them on the right track but that it affirmatively misdirected them onto a wrong track.

Their thesis is that since the language “of the value of $100 or upwards” and “of the value of less than $100” appears nowhere in Sec. 30(b) but does appear in Secs. 32 and ■342, the storehouse breaking offenses, the use of such language can have no conceivable explanation except in contemplation of charging an offense under Secs. 32 or 342. That thesis is guilty of a non-reading of history. Daytime housebreaking (Sec. 30(b)) has led a statutory life of its own only since 1965. (Chap. 345, Acts of 1965).

Before that date, daytime housebreaking and .storehouse breaking with intent jointly occupied Sec. 32. The two offenses had a common origin in a series of English statutes enacted throughout the Sixteenth and Seventeenth Centuries. The two offenses appeared together in Maryland at least as early as 1793. (Chap. 57, Acts of 1793) They were codified together in 1809.

(Chap. 138, Acts of 1809) The same intent provision served both •classes of buildings from the common birth until as late as 1943. (Chap. 229, Acts of 1943) The present Sec. 342 .shared this common destiny since it is an offshoot of the .greater storehouse breaking with intent offense, branching off from it only in 1933. (Chap. 78, Acts of 1933 ■(Spec. Sess.)). ■Unquestionably, from the centuries of sharing a com ⁶⁵⁹ mon statutory provision, the habit arose of charging the offenses with a common indictment form, using only a blank space or two to make the limited distinctions that were required.

In view of a cohabitation so venerable and an estrangement so recent, the fact that each of the now distinct offenses has taken on a certain coloration and certain habitual language tracing from the long association between them is not remarkable. The Search of the Automobile The appellant Garrett complains of the search of the trunk of the automobile which was conducted at the scene of the arrest but after the arrestees had been handcuffed and removed to the police station. Items were recovered from the trunk which bore directly on the rogue and vagabond charge, particularly that part of it which proscribes “the possession of tools or implements from which a felonious intent could be inferred,” Crossland v. State, 252 Md. 70, 72 , and which bore indirectly on the general charge of conspiracy to commit daytime housebreaking. The facts will be more fully alluded to in discussing the sufficiency of the evidence, infra, but it is clear that the police had “probable cause in the constitutional sense to believe that the vehicle contain [ed] that which is subject to seizure, whether it be contraband ... or the fruits or instrumentalities of a crime.” Cornish and Gilman v. State, 6 Md. App. 167, 175 .

See also Johnson v. State, 8 Md. App. 28, 32-33 . The thrust of Garrett’s argument is that the search was not incidental to the arrest and therefore in contravention of Preston v. United States, 376 U. S. 364 , and Agnello v. United States, 269 U. S. 20 . Garrett’s reliance on Preston and Agnello is misplaced. Chambers v. Maroney, 399 U. S. 42 , made it clear that although some searches of automobiles may in special circumstances be based upon the doctrine of a search incidental to a lawful arrest, the dominant rationale for the warrantless search of an automobile is bottomed upon a completely independent doctrine, to which all considerations of the ⁶⁶⁰ arrest and the arrestee are largely irrelevant.

That doctrine was first announced in Carroll v. United States, 267 U. S. 132 (1925), and has been reaffirmed, interpreted and expanded by the Supreme Court in Husty v. United States, 282 U. S. 694 (1931); Scher v. United States, 305 U. S. 251 (.1938); Brinegar v. United States, 338 U. S. 160 (1949) ; Dyke v. Taylor Implement Mfg. Co., 391 U. S. 216 (1968) and Chambers v. Maroney, supra, (1970). Carroll distinguished the home from the automobile and recognized that automobiles and other conveyances might be searched under circumstances which would not justify the search without a warrant of a house or an office. It held that the police may conduct a warrantless search of an automobile where they have probable cause to believe that the automobile contains contraband or the fruits, instrumentalities or evidence of crime.

Chambers finally put to rest the notion that the police may be required to “seize” and thereby immobilize an automobile while they then proceed to try to obtain a warrant for the follow-up “search” of the automobile. The Court said: “For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.” 399 U. S. at 52 . See also Middleton v. State, 10 Md. App. 18 , and cases cited therein applying