Benton v. State

• Decision Date: 30 December 1969
• Docket Number: No. 18,18
• Citation: 8 Md.App. 388,260 A.2d 86
• Parties: John Dalmer BENTON v. STATE of Maryland. Misc.
• Court: Court of Special Appeals of Maryland

Page 388

8 Md.App. 388

260 A.2d 86

John Dalmer BENTON v. STATE of Maryland.

Misc. No. 18.

Court of Special Appeals of Maryland.

Dec. 30, 1969.

H. Thomas Sisk, with M. Michael Cramer, Washington, D. C., Lawrence Levitan, and Paul H. Weinstein, Rockville, on brief, for appellant.

Edward F. Borgerding, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and Francis X. Pugh, Asst. Atty. Gen., on brief, for appellee.

Before ANDERSON, MORTON, ORTH and THOMPSON, JJ.

ANDERSON, Judge.

This case comes to us on remand by the Supreme Court of the United States. See Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The appellant John Dalmer Benton, was tried in August, 1965, before a jury in the Circuit Court for Prince George's County under an indictment charging in the first count burglary (Md.Code, Art. 27, Sec. 30(a)), and in the third count common law larceny. The second count (housebreaking) was abandoned by the State. He was convicted of burglary but acquitted of larceny. While Benton's appeal was pending in the Court of Appeals, Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (1965) was decided, holding invalid a provision in the Maryland Constitution which required grand and petit jurors declare their belief in God. Because both the grand and petit juries in Benton's case had been unconstitutionally composed, the Court of Appeals remanded the case to the trial court for Benton to exercise the option of permitting the Court of Appeals to review his appeal notwithstanding this defect in the proceedings or of demanding reindictment and retrial. He chose to have his conviction set aside, was reindicted by a legally constituted grand jury, was retried for both burglary and larceny, and was convicted by a valid petit jury of both offenses. On retrial Benton claimed double jeopardy barred prosecution on the larceny count because the first jury had acquitted him of that offense, and his motion to dismiss the larceny charge was denied by the trial court. On appeal this Court rejected appellant's double jeopardy challenge and affirmed both convictions. Benton v. State, 1 Md.App. 647, 232 A.2d 541 (1967). The Court of Appeals denied certiorari. The Supreme Court reversed the larceny conviction under the double jeopardy provision, vacated the burglary conviction, and remanded the case to this Court for further proceedings to make a determination of whether evidence inadmissible under the law of Maryland in a trial for burglary alone was introduced in the joint trial for both burglary and larceny and whether the jury was prejudiced thereby. To accomplish this, and pursuant to the Supreme Court's directive, we have examined the record in detail and explored Maryland's law of evidence and definitions of burglary and larceny. In addition counsel on both sides filed briefs on the question remanded and were heard in oral argument.

The evidence as disclosed by the record reveals that the home of Marion E. and Myrtle L. West, his wife, located at 4711 Allentown Road, Forestville, Prince George's County, Maryland, was broken and entered sometime after 9:00 p. m. on February 24, 1965. The uncontradicted evidence reveals that at that hour, on that date, the house was locked, the lights were out, and no one was home. Mr. and Mrs. West returned to their home shortly after 10:00 p. m. to find the house lighted and a bronze station wagon backed up to the door of the garage leading to the kitchen. They could see a man walking in the house through the window as they approached, and as they entered the house they encountered two men, one of whom was later identified as John Dalmer Benton. The two intruders fled from the scene after first pulling the telephone from the wall as Mr. West attempted to use it and made their escape in the bronze station wagon parked outside. Missing from the house, according to the testimony were a Waring blender valued at $26.00 or $27.00; a toaster valued at $15.00; a hydraulic jack valued at $108.00; two electric heaters valued at $30.00 each;...