Buckley v. State

• Decision Date: 06 December 1967
• Docket Number: No. 186,186
• Citation: Buckley v. State, 2 Md.App. 508, 235 A.2d 754 (Md. App. 1967)
• Parties: Ronald BUCKLEY v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 508

2 Md.App. 508

235 A.2d 754

Ronald BUCKLEY v. STATE of Maryland.

No. 186.

Court of Special Appeals of Maryland.

Dec. 6, 1967.

Norman N. Yankellow, Baltimore, G. Denmead LeViness, Baltimore, on brief for appellant.

Anthony M. Carey, Asst. Atty. Gen., Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., and Malcolm Kitt, State's Atty., and Asst. State's Atty. for Baltimore City, respectively, Baltimore, for appellee.

Before ANDERSON, MORTON, ORTH, and THOMPSON, JJ., and J. DUDLEY DIGGES, Special Judge.

PER CURIAM.

In a consolidated trial of indictment numbers 1222, 1223 and 1225 in the Criminal Court of Baltimore, Judge J. Gilbert Prendergast without a jury found the appellant Buckley guilty under each of the first and fourth counts of indictments numbered 1222 and 1223, and guilty under the only count of indictment number 1225. He then imposed consecutive sentences under each count. From these judgments appellant has appealed to this Court. Since the factual situation to some degree differs, each indictment will be discussed separately.

I. Indictment Number 1222-5803 Bellona Avenue

This indictment contains six counts. The first three charge the appellant with breaking and entering a warehouse situate at 5803 Bellona Avenue (1) with intent to steal goods of a value of a hundred dollars and upwards (violation of Code, Article 27, Section 32, 1967 Repl.Vol.), (2) with intent to steal goods of a value of less than one hundred dollars (violation of Code, Article 27, Section 342, 1967 Repl.Vol.), and (3) stealing goods having a value of five dollars and upwards (violation of Code, Article 27, Section 33, 1967 Repl.Vol.). The indictment further charges the appellant with (4) being a rogue and vagabond (violation of Code, Article 27, Section 490, 1967 Repl.Vol.), (5) grand larceny (violation of Code, Article 27, Section 340, 1967 Repl.Vol.), and (6) receiving stolen goods (violation of Code, Article 27, Section 466, 1967 Repl.Vol.). Upon the appellant being found guilty under counts one and four he was sentenced to consecutive terms in the Maryland Correctional Institution of eighteen months and six months, respectively.

There was testimony justifying the trier of facts concluding that the building located at 5803 Bellona Avenue was possessed by the members of Alpha Sigma Chi fraternity. The only evidence dealing with the type of occupancy of the building shows that there was no person residing or domiciled in the building, and in fact there existed no bed or other sleeping facility, nor a room utilized as a kitchen. There is testimony, however, which will support the inference that even though the building was originally designed as a dwelling, in fact, at the time of the alleged breaking it was being used exclusively as a meeting and recreational facility by the fraternal organization.

From the facts above enumerated it is clear that the building was not being used as a dwelling, but as a meeting and recreational facility. Therefore, since as the Court of Appeals held in Hackley v. State, 237 Md. 566, 207 A.2d 475 (1965), that all buildings other than a dwelling house are within the meaning of the structures enumerated in Article 27, Section 32, the conviction and sentence under count one must be affirmed.

The appellant did not, either in his brief or at the oral argument, question the validity of the finding of guilt under the fourth count (rogue and vagabond) and the imposition of a consecutive six month sentence following the conviction and sentence under count one (warehouse breaking). However, under Maryland Rule 1085 we take cognizance of plain error appearing on the record. We recently held in Manning v. State, 2 Md.App. 177, 233 A.2d 821, that upon a conviction under a count charging breaking and entering with intent to steal in violation of Section 32 of Article 27 of the Code, a count in the indictment also charging the defendant with being a rogue and vagabond under that part of Article 27, Section 490, which proscribes being found upon premises with intent to steal merges into the conviction under Section 32 and it is error to convict and sentence under each of these counts. See also Chittum v. State, 1 Md.App. 205, 228 A.2d 628 (1967). A fortiori the conviction and sentence under the fourth count is a nullity and will have to be vacated.

II. Indictment Number 1223-4713 Falls Road

This indictment charges the defendant under identical counts as those enumerated in indictment number 1222. The only difference is that they pertain to crimes connected with a building alleged to be a warehouse located at 4713 Falls Road.

The testimony here shows that the property was occupied by a fraternal group known as Phi Beta Omega. The testimony, however, is completely silent as to whether or not at the time the alleged crime was committed the building was being used as a dwelling or domicile, anyone slept there, or there even existed sleeping or other accommodations generally associated with a home or dwelling. In fact, there is practically no evidence which describes the purpose for which the building was being used. The only testimony bearing on this point was that of one witness, a member of the fraternity,...