Oden v. State

Brune, C. J., delivered the opinion of the Court. John W. Oden, the appellant, David L. Oden and Daniel J. Lawler were charged with attempting to break and enter a drugstore in Baltimore County. They were tried before the court, sitting without a jury, and were found guilty, and each was sentenced to confinement in the Maryland Reformatory for Males for not more than five years. John W. Oden ³²⁷ alone appeals.

He contends that burglar’s tools found by the police in the trunk of Lawler’s car were improperly admitted in evidence against him and that the evidence against him was insufficient to warrant conviction. At about 2:45 A.M. on July 28, 1959, a witness, who was a night supervisor at a convalescent home across the street from the drugstore in question, noticed that a black (or dark) 1952 or 1953 Ford car had pulled into an adjacent, but closed, gasoline station and that a man in a plaid shirt was walking up and down North Bend Road and around the gasoline station at the corner of that road and Edmondson Avenue. Two men got out of the car and the man in the plaid shirt joined them and they all got in the car. A few minutes later the witness heard a banging or hammering noise and looked out the window to see what was going on.

The car was at the gasoline station, parked behind the drugstore. The witness saw the three men take something like a suitcase “in back of the car.” It was apparently heavy. One of the men was cutting on the side door of the drugstore. They then started banging on the back door.

At this stage of proceedings the witness called the police. The three men left just after that and pulled off on North Bend Road. A few minutes later the first police officer arrived in response to the call. He drove around the drugstore, stopped behind it and then circled it on foot.

There was no one then in sight. He observed that two locks on the cellar door had been cut and removed from the hatch. Another police car arrived, and at about 3:45 A.M. a dark, 1953 Ford approached the drugstore along North Bend Road, without lights, as one of the officers testified. He stopped the car.

When first sighted, it appeared to contain only one person, who was driving. That was Lawler, the owner of the car. After the car was stopped, the other defendants were found, one lying on the front seat, the other on the back. All three were ordered out of the car and were handcuffed at once.

Lawler was asked for the key to the trunk of the car. He said that he had none and the officers then forced the trunk open and found in it “a complete set of burglary tools.” ³²⁸ Among them was a pair of pincers or bolt-cutters. These and the two locks cut from the door of the drugstore were sent to the F. B. I. laboratory in Washington, which reported that the locks had been cut with those pincers. Driving a car without lights in the dark hours of early morning constituted a violation of the motor vehicle laws.

This misdemeanor committed in the presence of the arresting officer would, of course, constitute sufficient ground for the officer to arrest the offender. The testimony that the lights were off was disputed, but this was a controverted issue of fact on which the trial judge accepted the officer’s testimony; and we see nothing in the record which would warrant our concluding that the trial judge was in error in so finding. It seems at least highly probable, in view of the prompt handcuffing of the defendants, that their actual arrest (as distinguished from a mere accosting) was based upon the attempted breaking and entering rather than upon the traffic violation. Concededly, that offense did not occur in the presence of either of the officers.

However, even if the arrest of the appellant and his companions were unlawful, this would not vitiate the trial and