Jung v. State

Morton, J., delivered the opinion of the Court. The appellant was convicted of burglary in a non-jury ³⁰¹ trial in the Circuit Court for Baltimore County and sentenced to three years imprisonment. As a basis for his contention that the evidence was legally insufficient to sustain his conviction, appellant argues that the State failed to prove that the alleged breaking and entering occurred “in the nighttime.” We agree. Corporal George Charles Wyatt, a Maryland State Police Trooper, testified that “at approximately 1:00 o’clock on November 28th, I took my family over to my mother’s for Thanksgiving dinner, for approximately an 11 to 12 hour period from approximately 1:00 in the afternoon to approximately midnight that night.” He then described how the house had been broken into and listed the household items, including a gun, which were missing.

At the conclusion of the case for the defense, the following colloquy occurred between the trial judge and Corporal Wyatt: “THE COURT: Corporal Wyatt, just stay where you are; I want to ask you a question. CORPORAL WYATT: Yes, sir. THE COURT: How close is your home to adjacent homes ? CORPORAL WYATT: Twenty feet, Your Hon- or.

THE COURT: Twenty feet? CORPORAL WYATT: Yes, Sir. THE COURT: You mean there’s one on each side of you? CORPORAL WYATT: Yes, Sir.

THE COURT: Were the occupants of those homes at home that afternoon, if you know? CORPORAL WYATT: Well, directly across the street they had a housewarming. I asked them about it; it started about two in the afternoon and went on until ten o’clock at night, in the evening, and they had people in the house all that time. THE COURT: Can the window that was broken in your house be observed from that house? ³⁰² CORPORAL WYATT: Yes.

THE COURT: Did anyone there observe anyone around your house? CORPORAL WYATT: The entire neighborhood was canvassed by myself, and no one had seen anything.” Thereafter, in response to a question by appellant’s trial counsel, Corporal Wyatt testified that he was unable to determine what time his home had been entered. An essential element of the crime of burglary is proof that the breaking