O'Brien v. State, 19

• Decision Date: 14 March 1967
• Docket Number: No. 19,19
• Citation: 227 A.2d 362,1 Md.App. 94
• Parties: Paul Stewart O'BRIEN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 94

1 Md.App. 94

227 A.2d 362

Paul Stewart O'BRIEN v. STATE of Maryland.

No. 19.

Court of Special Appeals of Maryland.

March 14, 1967.

Raymond J. Kane, Jr., Ellicott City, for appellant.

Dickee M. Howard, Sp. Atty., Baltimore, Thomas B. Finan, former Atty. Gen., Dickee M. Howard, Sp. Atty., Baltimore, J. Thomas Nissel, State's Atty., and Richard J. Kinlein, Asst. State's Atty., Howard County, Ellicott City, on the brief, for appellee.

Before ANDERSON, MORTON, ORTH, THOMPSON and HARRY E. DYER (specially assigned), JJ.

PER CURIAM.

The appellant, Paul Stewart O'Brien, was tried by Judge Macgill, without a jury, in the Circuit Court for Howard County, and found guilty of storehouse breaking with intent to steal goods over the value of $100.00 or more. Article 27, Sec. 32, Maryland Code (1957), (1966 Cum.Supp.). O'Brien was sentenced to four years in the Maryland Penitentiary. This is an appeal from the judgment and sentence.

On the evening of June 29, 1965, the witness, John Scovitch, who resides on Washington Boulevard across from Mobern Electric Corporation, heard 'banging noises' coming from the building occupied by Mobern Electric Corporation and saw two men attempting to force a door of the building and called the State Police. In response, a Maryland State Trooper went to the scene. While he was attempting to cross U.S. Route #1 to investigate, he observed two individuals attempting to go into a hole which had been cut into the north side of the building. When the two individuals saw the Trooper they ran in an easterly direction behind the building. It was about 8:45 p.m. when the Trooper first saw the appellant and visibility was good. In court the Trooper positively identified the appellant as one of the individuals he had pursued and apprehended. He further testified that from the time he first saw the two individuals at the hole until the time he apprehended the appellant he never lost sight of him. He was unable to apprehend the other individual. When he returned to the scene of the crime he observed that a hole had been cut in the north wall of the building approximately 3 1/2 feet by 1 3/4 feet and two rows of cinder block had been removed. However, complete entry had been blocked by steel sheets piled up against the inside wall where the hole had been cut.

The appellant contends that the State failed to prove the defendant-appellant guilty of the crime charged in the Criminal Information because there was no sufficient evidence to show an entry nor was there evidence of felonious intent to steal goods worth $100.00 or more. In support of this, he argues that there was no evidence to show that the appellant actually entered the building, and since entry is a necessary element of the crime, the appellant charged the lower court erred in denying his motion for directed verdict of acquittal. He further argues that since felonious intent is an essential element of burglary at common law and under statutes requiring such intent, felonious intent like any other element of the crime must be proven, and since no goods were taken there could be no evidence here of felonious intent.

There is no merit to either contention. As pointed out by the lower court, O'Brien 'was caught redhanded breaking into the building along with someone else.' Furthermore, from the testimony of the witness Bernstein, President...