Smith v. State

Briscoe, J., delivered the opinion of the Court. The appellants, in this case, were indicted, with one John Avery, on the 25th day of September, 1906, in the Circuit Court for Wicomico County, for a violation of the Act of 1906, ch. 476. ⁴⁰ This Act provides, “that any person who breaks and enters, either by day or by night, any building, whether inhabited' or not and opens or attempts to open any vault, safe, or other secure place, by use of nitroglycerine, dynamite, gunpowder or any other explosive shall be deemed guilty of burglary, with explosives. And .any person duly convicted of burglary with explosives, shall be sentenced to the penitentiary in the discretion of the Court, for a period of not more than twenty years.” The indictment consisted of two counts. A demurrer was interposed to each count, and was overruled by the Court below.

The appellants then moved to sever, and this motion was also overruled. A motion was then made to quash each count of the indictment and was overruled as to the first count, but granted as to the second and the second count was quashed. The first count, upon which the appellants were tried charged, that on the seventeenth day of May, in the year 1906, in the night time of the same day, at Wicomico County, a certain building towit, the depot in the town of Salisbury of the Baltimore, • Chesapeake and Atlantic Railway Company, a body corporate of the State of Maryland, feloniously and burglariously did break and enter and did attempt to open and did open a certain vault, safe, and other secure place in the depot by the use of nitroglycerine, dynamite, gunpowder and other explosives, with intent certain moneys, goods and chattels in the vault, safe and other secure place in the depot, then and there being, then and there feloniously to steal, take and carry away, &c. According to the record,.

John Avery, upon arraignment, pleadedi guilty, and the four appellants pleaded not guilty. Upon trial, they were convicted, upon the first count of the indictment, and each sentenced to be confined in the penitentiary for fifteen years. And this appeal, is from the judgment, so rendered against the appellants. It will be unnecessary for us to consider the second count of the indictment, as this count was quashed, and the .appellants were tried on the first count. ⁴¹ As to the motions to sever, we need only say, that the granting or refusing such motions is entirely within the discretion of the trial Court, under all the circumstances of the case.

Arch. Crim. Prac. & Pleading, 304; 1 Chitty Crim. Law, 268; U. S. v. Marchant, 12 Wheat. 479 ; St. Clair v. U. S., 154 U. S. 134 .

It is however, contended upon the part of the appellants, that the Court below, committed an error in overruling the demurrer and in refusing to grant the motion to quash the first count of