Reagan v. State

OrTh, J., delivered the opinion of the Court. The appellant was found guilty by a jury in the Circuit Court for Prince George’s County of housebreaking and grand larceny, being the first and second counts respectively of the indictment under which he was charged. Concurrent sentences of 10 ⁵⁹³ years on the first count and 15 years on the second count were imposed “to run consecutively with any sentence previously imposed by any Court of competent jurisdiction.” THE INDICTMENT The first count of the indictment charged that the appellant “* * * thg dwelling house of one Gaston Paul Jennett and Sheila Jennett * * * feloniously did break with intent to commit a certain felony there and therein, to wit: with intent then and there certain goods and chattels in the said dwelling house then and there being found, then and there feloniously to steal, take and carry away, contrary to the form of the Statute in such case made and provided, and against the peace, government and dignity of the State.” The appellant contends that the lower court erred in denying the motions for judgment of acquittal “with regard to the defect in the first count of the indictment in that the said indictment failed to charge an essential element of the offense of housebreaking, namely, that the breaking was in the daytime”. The question is whether the first count of the indictment sufficiently stated an offense so as to permit the sustaining of the conviction under it. 1 ⁵⁹⁴ Under the common law, the felony of burglary was the breaking and entering of a dwelling house of another by night with the intent to commit a felony.

Clark and Marshall, Law of Crimes (6th Ed.) § 13.00 p. 870. It is a felony in Maryland, Maryland Declaration of Rights, Art. 5, and although the penalty for its commission is fixed by statute, the crime of burglary is not defined therein, Md. Code, (1967 Repl. Vol.) Art. 27, § 29. See McGrow v. State, 234 Md. 273, 275 ; Hannah v. State, 3 Md. App. 325 .

So if the breaking and entering of the dwelling house at night is with the intent to steal personal goods of another under the value of $100 the offense is not common law burglary, for the larceny of goods under the value of $100 is designated a misdemeanor by Code, Art. 27, § 341. But by legislative enactment the felony of burglary includes the breaking and entering of “any dwelling house in the nighttime with the intent to steal, take or carry away the personal goods of another of any value therefrom,” Code, Art. 27, § 30(a), and the maximum penalty of 20 years established by § 29 is for both the statutory burglary and common law burglary. In Maryland neither common law burglary nor statutory burglary encompasses the breaking of a dwelling house in the daytime. This gap was filled by legislative enactment.

By Code, Art. 27, § 30(b) there is proscribed the felony “of breaking a dwelling house in the daytime with intent to commit murder or felony therein, or with intent to steal, take or carry away the personal goods of another of any value therefrom” and a maximum penalty of 10 years therefor is authorized. 2 Thus although not designated as burglary, the offense proscribed by § 30(b) includes the essential elements of both burglary and statutory burglary with two exceptions: (1) the breaking need not be in the nighttime, 3 and (2) merely a breaking is required rather than a breaking and entering. And while a person convicted of common law and statutory burglary must restore the thing taken to the owner thereof or pay him the full value thereof under the ⁵⁹⁵ provisions of § 29, no such requirement is provided by § 30(b) upon the conviction of daytime housebreaking. It is clear, therefore, that in Maryland there are three separate felonies under which the breaking of a dwelling house is proscribed — common law burglary, statutory burglary and daytime housebreaking. Under the provisions of Code, Art. 27, § 31 in any indictment for the crime of burglary it is sufficient to use a formula substantially to the effect: “that A-B on the......day of ...., 19.., in the County (City) aforesaid feloniously committed burglary of the dwelling of C-D; * * This formula is sufficient to charge both common law burglary and the statutory burglary under § 30(a) but no formula is provided by statute for daytime housebreaking under § 30(b). “The rule which seems to be generally recognized draws a line of demarcation between an indictment or information which completely fails to state an offense and one which alleges all the elements of the offense intended to be charged and apprises the accused of the nature and cause of the accusation against him, even though it is defective in its allegations or is so in-artificially drawn that it would have been open to attack in the trial court.” Putnam v. State, 234 Md. 537, 541 .

In our view the indictment in the instant case does charge an offense, as it alleges all the elements of the crime proscribed by § 30(a) — the breaking of a dwelling house with intent to steal. We think that the time of the offense, “in the daytime”, is not an essential element of the crime, and is not used in the statute to define or characterize the offense, but merely to distinguish it from burglary which must be committed in the nighttime. We find support in our view in the rationale of St. Clair v. State, 1 Md. App. 605 and Gazaille v. State, 2 Md. App. 462 where we held that lack of sufficient proof that the breaking occurred in the daytime as opposed to the nighttime did not require reversal of a judgment upon conviction of a charge of daytime housebreaking as we felt that when the proof fails to show the time of the offense, then the accused may be punished under the statute providing the lesser penalty. 1 Md. App. ⁵⁹⁶ 622. As it is not necessary to prove that the offense occurred in the daytime, it is not necessary to allege that fact.

And the omission of an allegation that it did so occur is neither a matter of substance, precluding its addition by amendment, Md. Rules, 714a; Corbin v. State, 237 Md. 486 ; Watkins v. State, 4 Md. App. 47 , nor an essential element or fact “constituting the specific offense,” Md. Rules, 712a. The appellant cites no authorities which support his contention. We find further support for our view in cases in other jurisdictions. 4 In State v. Baker, 92 Utah 567 , 70 P. 2d 733, 734 (1937) the court said: “Certainly, the weight of authority — practically all the authority — is to the effect that an indictment for burglary in the daytime is good without expressly alleging that it was in the daytime.” In State v. Eubanks, 77 Id. 443, 294 P. 2d 273 (1956) it was held that the state was required to allege and prove the time of day for conviction of nighttime burglary and that a charge which does not allege the time of day charges only daytime burglary. In State v. Newell, 93 Vt. 81 , 106 A. 561 (1919) it was held that it was not necessary to include “daytime” in an indictment for a lesser burglary offense, although it was necessary to include “nighttime” in an indictment for the greater offense.

State v. Neddo, 92 Me. 71 , 42 A. 253 (1898) and Carr v. Lanagan, 50 F. Supp. 41 (Dist. Ct. Mass. 1943) are to like effect. Compare In Re Rhyndress, 317 Mich. 21 , 26 N. W. 2d 581 (1947) Of course, an indictment must be sufficiently definite so as to inform the accused of the charge against him, to enable him to prepare his defense and to protect him against subsequent prosecutions for the same offense. Lynch v. State, 2 Md. App. 546, 562.

The indictment here fulfilled these requirements. Under its charge the only offense of which the appellant could have ⁵⁹⁷ been properly convicted was daytime housebreaking. A conviction of burglary cannot be sustained without proof that the offense occurred in the nighttime, Bright v. State, 4 Md. App. 154 , and the charge must so allege. 5 Further the indictment here alleged only a “breaking” in accordance with the provisions of Code, Art. 27, § 30(b), and not an “entering” which is an essential element of both common law and statutory burglary, Art. 27, § 30(a). We find nothing to indicate that the appellant was misled as to the charge against him or that he was actually prejudiced by the form of the indictment.

We have found that the indictment did not “completely fail to state an offense.” But even though it alleged “all the elements of the offense intended to be charged” and apprised the appellant “of the nature and cause of the accusation against him”, if the appellant thought it was defective in its allegations or “so inartificially drawn that it would have been open to attack in the trial court,” he could have challenged its sufficiency by an appropriate motion under Maryland Rule, 725b, or if he had wished further details of the charge he could have demanded a bill of particulars under Rule 715a or moved for discovery and inspection under Rule 728. See Putnam v. State, supra, 545-546. He did none of these things but merely contended in furtherance of his motion for judgment of acquittal, that the first count of the indictment failed to charge an offense. We think that the first count of the indictment sufficiently stated an offense so as to permit the sustaining of a conviction under it and therefore that the trial court did not err in refusing to grant the motion for judgment of acquittal.

The appellant filed a motion to suppress and exclude evidence as seized by an “unlawful and illegal search.” The motion was denied at a hearing before the trial on the merits. Objections at the trial to the admission of the evidence seized were overruled and a motion at the conclusion of the testimony to ex- ⁵⁹⁸ elude the evidence was denied. The appellant claims error in the rulings on the grounds that the arrest of the appellant was illegal, the search incident thereto unreasonable, and the seizure of the evidence unlawful. THE ARREST Evidence adduced at the hearing on the motion showed that Sarah Jean Moskel, while in her apartment on the second floor at s' Deer Park Drive, Gaithersburg, Maryland on 15 February 1967, heard a noise in the next apartment.

She knew the resident of that apartment was working and looking out the window did not see his car. She went into the hall and again heard noises in the adjoining apartment. She looked out the window and saw two men- — “one was carrying rifles and the other man was carrying something covered with a sheet.” The appellant was one of the men. The men were both wearing gloves although it was an unusually warm day.

She saw the men put the articles in the back of a station wagon. They then re-entered the building and went ro the third floor. The men carried a television-set from the building and put it in the “green Falcon station wagon,” which “had other things in it.” She had resided in the apartment house for four and a half years, knew that the twrn men did not reside there and had not seen their car before. She called the police.

An officer came to her apartment and she related the facts to him. She “went around to different apartments” and “saw that they were broken into” and told the officer about them. Corporal Ralph Cooley of the Montgomery County Police received a radio call in his cruiser about 2:30 P.M. on 15 February to go to 9 Deer Park Drive. He did not “remember the exact wording of the call.

Something to the effect that two men were carrying property from the apartment building, placing it in a car to the rear of the building.” The only description of the men given that he could recall was that they were “two-white males.” The description of the car was that it was “a green or blue, light colored green or blue Falcon station wagon.” Upon arriving at the apartment building he saw “a ’63 Falcon, light blue in color, bearing Maryland tags parked in the rear of No. 9 Deer Park Drive. It was occupied by two-white males, one under the steering wheel and one on the op ⁵⁹⁹ posite side in the front seat. I pulled in front of the vehicle. As I was getting out of the police cruiser, the operator, the one under the steering wheel, got out of the car and met me near the front of my car and near the front of his car.

At this point I asked him for some identification, which he produced.” He told them they could not leave. He asked the appellant if that was his property he was moving. The appellant said it belonged to his girl friend whose name was “Keeney”, that she lived on the second floor and that he thought she was at work at GEICO but he did not know the phone number and was not sure she was there at the time. The officer could see that the station wagon contained a console model television lying face down. “The back seat was turned flat to make the entire back of the station wagon on a flat cargo space.

It had several cases which appeared to be gun cases on the right side of the vehicle inside, and several pillow cases with articles in them * * *. The whole floor space was filled with what appeared to be pillow cases with articles in them, bedspreads, weapons in cases, other small numerous items from houses such as radios, et cetera.” There was no other vehicle “near this description” given on the lookout and the two men were the only ones to the rear of the building. Officer Michael J. Keller of the Montgomery County Police received a radio call in his police cruiser on 15 February “to respond to No. 9 Deer Park Drive * * * The call came out stating that there was persons going into apartments, knocking on doors and seeing if the persons that lived in the apartments were at home. If not they were going into the apartments and taking things out.” The call included a license tag number of the car involved — EA 9792.

He also received information on the radio while going to the scene that the car was registered in the name of the appellant and that the appellant was a known housebreaker. When he arrived at the scene Cooley was present. The appellant, identified by his drivers permit, was seated on the driver’s side in a Falcon station wagon bearing the license tag given in the lookout. Keller gave the information he had received to Cooley who went into the building and “checked the apartment.” Cooley ascertained that an individual by the name of Keeney lived on the second floor of the apartment house, but the individual was a male.

He talked ⁶⁰⁰ to Mrs. Moskel and went to the third floor and observed several apartment doors ajar. He placed the appellant and his companion under arrest. The appellant urges that he was arrested by Corporal Cooley when that officer first arrived on the scene and that at that time Cooley did not have probable cause for the arrest nor is the record sufficient to show that any member of the police team had, at that time, probable cause for his arrest. But we need not decide the question raised by this argument for we think, assuming that an arrest was made as the appellant claims and that it was illegal, that there was a subsequent arrest of the appellant which was legal.

When Cooley came out of the apartment building and placed the appellant under arrest he was in receipt of the information received on the radio by Keller, the information given him by Mrs. Moskel and had observed the broken apartments and the articles in the station wagon. We have no difficulty in determining that he then had probable cause to believe that the felony of daytime housebreaking, Code, Art. 27, § 30(b) or larceny, Code, Art. 27, § 340 had been committed and that the appellant was the one who committed it. Ervin v. State, 4 Md. App. 42, 45 .