State v. Wiley

Johnson, J., delivered the opinion of the Court. On March 17th, 1937, an indictment was found by the grand jurors for Montgomery County against LeRoy Charles Wiley in the following words: “The Grand Jurors of the State of Maryland, for the body of Montgomery County, upon their oaths and affirmations present that LeRoy Charles Wiley late of said County, on the eleventh day of November in the year of our Lord nineteen hundred and thirty-six about the hour of eight-thirty o’clock in' the night of the same day, at the County of Montgomery aforesaid, the dwelling house of Lloyd C. Shumac there situate, feloniously and burglariously did break and enter, with intent then and there the goods and chattels, moneys and properties of Lloyd ¹²¹ C. Shumac 'and Margaret Shumac in the same dwelling house then and there being found, then and there feloniously and burglariously to steal, take and carry away, contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State. Second Count. And the Grand Jurors aforesaid, upon their oaths and affirmations aforesaid do further present that the said LeRoy Charles Wiley on 'the said day in the said year, at the said County, one lady’s Hudson Seal fur coat of the value of three hundred dollars, current money; altogether of the value of three hundred dollars current money, altogether in excess of the value of twenty-five dollars current money of the goods and chattels, moneys and properties of Margaret Shumac then and there being found, did, then and there feloniously steal, take and carry away, contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State.” The traverser demurred to the first count and pleaded not guilty to the second.

His demurrer was sustained, and the case proceeded to trial on the charge contained in the second count, as to which he was found not guilty. From the action of the trial court in sustaining the demurrer to the first count, the State prosecutes this appeal ; hence the question is presented as to the sufficiency of that count., There is no contention that, tested by familiar rules, any of the six elements, viz: (1) Breaking, (2) entry, (3) in the night time, (4) in the dwelling house, (5) of another, (6) with intent to commit a felony therein, each of which is necessary to constitute the crime of common law burglary, is here laicking, but appellee claims, that by the passage of chapter 78, Special Session of 1933, amending section 319 of article 27 of the Code, which makes the larceny of property under the value of $25.00 a misdemeanor, the count is defective in failing to state that appellant, at the time of breaking and entering the dwell ¹²² ing house of Lloyd C. Shumac, intended to steal articles of the value of $25.00 or more, while the State insists that, even assuming the Legislature, in amending section 319, thereby changed the common law definition of burglary, the first count of the indictment is nevertheless good as against demurrer, since it charges a breaking and entering of the dwelling house with intent “feloniously and burglariously” to steal certain goods and chattels of the Shumacs, and this is of necessity equivalent to the charge that appellee entered the dwelling with intent to steal property of