Marston v. State

Thompson, J., delivered the opinion of the Court. John George Marston, the appellant, was convicted of burglary in a court trial in the Circuit Court for Baltimore County. He was tried jointly with his brother, Donald Edward Marston, and both were sentenced to terms of three years. On appeal appellant contends: (1) the building broken into was not a “dwelling”, (2) there was insufficient evidence of appellant’s felonious intent.

Since this Court agrees with appellant’s first contention, there will be no need to discuss the second. At approximately 10:00 P.M. on March 22, 1969, Donald Marston, the appellant’s brother, was seen going to the rear of the building at 439 Community Drive in Baltimore County, Maryland. A neighbor called the police after hearing breaking glass. While Donald was out of sight in back of the building, the appellant continued to circle the block in his automobile, blinking his automobile lights eaeh time he passed in front of the building at 439 Community Drive.

This blinking occurred between two and five times. When the police arrived they found Donald Marston wandering in the street apparently pointlessly; he had been drinking. The appellant was found a short distance away asleep in his automobile; he also had been drinking. At the rear of the building in question, the police officers found a screen door slashed, a window pane in the door broken, and the door itself open.

Apparently nothing was missing. At the time Donald Marston was apprehended, he had in his possession a paring knife and a ball peen hammer. Miriam Clayton, the owner of the property, testified she had employed Donald Marston to do work on the building at two separate periods. The first period was ³⁶² from February to April of 1968.

The second period was from June to November of 1968. During the time he worked on the house, Donald Marston was allowed to use it as his dwelling, entering by use of his own key. After Mrs. Clayton became offended at Donald Marston’s drunken conduct, in November, 1968, she told him to stop working on the house, to sleep there no longer, and to return the keys to her. He returned the keys on January 12, 1969, at the Eastern Police Station after Mrs. Clayton had procured some type of summons, not described in the record, from the court.

Although the house was furnished, Mrs. Clayton stated that she never lived there and indicated clearly she never intended to live there. During Mrs. Clayton’s ownership, Donald Mars-ton appears to have been the only occupant. Both appellant and his brother testified. The appellant stated he was under the impression his' brother still lived at 439 Community Drive and had his own key to enter the building.

Appellant did not go into the building because he had been forbidden to come on the property by Mrs. Clayton. He explained that he blinked his lights as a signal to his brother that he planned to sleep in his car, which was his usual habit when drunk. Donald Marston explained that although he no longer worked for Mrs. Clayton, he had often gone to the building on Community Drive to sleep off his excessive drinking. Both appellant and his brother denied all intent to commit a felony within the building.

On numerous occasions this Court has concerned itself with what is a “dwelling house.” In Jones v. State, 2 Md. App. 356, 360 , 234 A. 2d 625 at footnote one, the Court said: “If a building is ‘used as a place to sleep in’ it may be a dwelling house.” In Buckley v. State, 2 Md. App. 508 , 235 A. 2d 754 , the Court pointed out that even though a certain building was originally designed as a dwelling, at the time of the breaking it was in fact being ■used exclusively as a meeting and recreational facility by a fraternal organization and hence was no longer a dwelling. Buckley shows that the mere fact a building was ³⁶³ originally designed as a dwelling is not controlling when its later use is no longer as a dwelling. The clearest test of what is a dwelling house is in Poff v. State, 4 Md. App. 186, 189 , 241 A. 2d 898 wherein the Court said: “The test as to whether or not a building is a ‘dwelling house’ is whether or not it is used regularly as a place to sleep. No building becomes a ‘dwelling’ by reason of the fact that someone may sleep there on rare occasions or take an occasional nap there, as in the current appeal.

(Authorities omitted; emphasis added). In the instant case, there must have been occupancy by someone other than the appellant or his brother, Donald Marston, before the conviction may be affirmed. If the occupancy is by appellant or by his codefendant, then the dwelling becomes their dwelling, and at common law one could not be guilty of burglary of his own dwelling. If the dwelling is used as the constructive dwelling of Mrs. Clayton, the owner, because she allowed her servant, Donald Marston, to sleep there, then the use as a house terminated in November, 1968, when Mrs. Clayton evicted Donald Marston and later instituted judicial process to recover the keys from him.

Thus, the constructive dwelling of the owner, if any, had clearly terminated approximately