Poff v. State

Thompson, J., delivered the opinion of the Court. John Preston Poff, the appellant, was convicted of storehouse breaking in the Circuit Court for Prince George’s County, Judge Roscoe H. Parker presiding with a jury. Poff complains that the conviction for storehouse breaking instead of breaking a “dwelling” was contrary to law; that he was subject of a police entrapment; that he was prejudiced in the eyes of the jury by the arrest of his wife in the courtroom while he was being tried, and by the resulting colloquy between the judge and himself. In August of 1966 Detective James Fitzpatrick of the Prince George’s County Police made arrangements to “lease,” for a few days, an apartment in the Glassmanor apartment project ¹⁸⁸ from the resident manager, Elmer Purvins.

Fitzpatrick and his partner, Detective Richard Shaner, then moved some guns, a television set and a few other items into the furnished apartment. The two policemen occupied the apartment for three days. They arrived early in the morning and left in the evening of each day. While using the apartment the officers ate hamburgers and cookies and occasionally slept there during the day.

On the third day Fitzpatrick placed a call to the company which owned the furniture and he asked for a man to come to the apartment and repair their rented furniture. Subsequently, one Mileski arrived to make the repairs. After Mileski started a conversation about the guns Fitzpatrick told him that he would soon be leaving and would be out all afternoon. Mileski left, but before sunset he returned with the appellant, Poff.

They knocked on the door several times but when there was no answer, they forcibly opened it. When they entered the apartment, the policemen, previously concealed, identified themselves and in the resultant turmoil Poff and Mileski were shot by the policemen who were attempting to arrest them. Poff was indicted for storehouse breaking and house breaking. He was found guilty only of the former charge.

Poff first complains that his conviction for storehouse breaking is contrary to law in that he did not break a storehouse but a dwelling; and that his motion for acquittal on the charge of breaking a storehouse should have been granted. In Hackley v. State, 237 Md. 566 , 207 A. 2d 475 the Court of Appeals of Maryland discussed the meaning of “storehouse” as used in Md. Code, Art. 27, § 32 (Breaking with intent to steal more than $100.00) which is the statute involved in the current indictment; as used in § 33 (Breaking and stealing more than $5.00) ; and as used in § 342 (Breaking with intent to steal less than $100.00, or stealing less than $5.00), concluding that the term “storehouse” should be given the same meaning in all sections. The Court suggested that the three sections covered all buildings, other than dwelling houses citing several earlier Maryland cases on the subject. In Buckley v. State, 2 Md. App. 508 , 235 A. 2d 754 , this court construing § 32, supra held that a “warehouse” as used in an indictment thereunder included a fraternity house being used ¹⁸⁹ as a meeting and recreational facility.

We said in Buckley v. State, supra, 2 Md. App. at page 511 : “[E]ven though the building was originally designed as a dwelling, in fact, at the time of the alleged breaking it was being used exclusively as a meeting and recreational facility by the fraternal organization.” To the same effect see Perkins, Criminal Law, Ch. 3, § 1 at 159, 2 Wharton, Criminal Law and Procedure, § 423 at 45. The present appeal will, therefore, be determined by whether or not the apartment at the time of the offense was being used as a “dwelling house” or as a place for storage. The facts show that the apartment was vacant at the time the officers “rented” it for