Downes v. State, 424

• Citation: 11 Md.App. 443,274 A.2d 663
• Decision Date: 16 March 1971
• Docket Number: No. 424,424
• Parties: Larry DOWNES v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 443

11 Md.App. 443

274 A.2d 663

Larry DOWNES v. STATE of Maryland.

No. 424.

Court of Special Appeals of Maryland.

March 16, 1971.

Hersh Stein, Baltimore, for appellant.

Gary Melick, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen. of Maryland, Charles E. Moylan, Jr., State's Atty. for Baltimore City, and Joseph B. Harlan, Asst. State's Atty. for Baltimore City, on brief, for appellee.

Argued before MURPHY, C. J., and ANDERSON and ORTH, JJ.

ORTH, Judge.

THE MISDEMEANOR OF BEING A ROGUE AND VAGABOND

On 13 January 1969 the Court of Appeals decided Crossland v. State, 252 Md. 70, 249 A.2d 153. On grant of certiorari it reversed a judgment of the Criminal Court of Baltimore which this Court had affirmed on direct appeal. The judgment was rendered by the lower court at a bench trial upon a verdict that Crossland was guilty of being a rogue and vagabond. Since the Crossland decision, many of those coming before us on direct appeal standing convicted of being a rogue and vagabond have sought to have the conviction set aside by applying the Crossland holding. The decision in Crossland, however, was upon unusual facts and circumstances; the Court of Appeals expressly so stated three times in its four and a quarter page opinion, 252 Md. at 73, 74 and 75, 249 A.2d 153. We are, of course, obliged to follow the holding of the Court of Appeals. But we are not compelled, nor are we persuaded, to enlarge that holding by applying it in cases not factually apposite.

The offense of being a rogue and vagabond ¹ is prescribed by Code, Art. 27, § 490. The statute establishes alternative situations in which a person shall be deemed a rogue and vagabond:

(1) being apprehended:

(a) possessed of implements at places and under circumstances from which may be presumed an intent feloniously to break and enter a dwelling house or storehouse; or

(b) possessed of offensive weapons at places and under circumstances from which may be presumed an intent feloniously to assault any person; or

(2) being found in or upon any dwelling house or storehouse, or in any enclosed yard or garden or area belonging to any house, with an intent to steal any goods or chattels.

We observe with reference to (1)(a) that the breaking and entering of a dwelling house is felonious when done in the nighttime with intent to commit a felony (common law burglary ²) or with intent to steal goods of any value, Code, Art. 27, § 30(a). The breaking of a dwelling house is felonious when done in the daytime with intent to commit murder or felony therein or with intent to steal goods of any value therefrom, Code, Art. 27, § 30(b). The breaking of a storehouse is felonious when done with intent to commit murder or felony therein or with intent to steal goods of the value of $100 or more therefrom, Code, Art. 27, § 32, and when chattels to the value of $5 or upwards are actually stolen, Code, Art. 27, § 33. The breaking and entering of any building either by day or by night is felonious when any vault, safe, or other secure place is opened or attempted to be opened by the use of explosives, Code, Art. 27, § 34. But the breaking of a storehouse with intent to steal goods under the value of $100 or when goods under the value of $5 are actually stolen is not felonious; such breaking is a misdemeanor under Code, Art. 27, § 342.

With reference to (1)(b), assault is felonious when committed with the intent to have carnal knowledge of a female child under the age of 14 years or with intent to rob or with intent to murder or with intent to commit a rape, Code, Art. 27, § 12. But simple assault is a common law misdemeanor, Coleman v. State, 4 Md.App. 386, 243 A.2d 24.

With reference to (2) the intent may be to commit either grand or petit larceny.

The Court of Appeals found in Crossland that the language used in the statute 'implies the mental processes preliminary to the actual doing of or completion of a particular act.' 252 Md. at 73, 249 A.2d at 155. Thus in each of the situations contemplated by the statute an essential element is the intent to commit the crime designated and the beneficial and useful purpose of the statute is to give enforcement officers a tool to apprehend and suppress more aggravated criminal conduct prior to its actual commission. The unusual facts and circumstances in Crossland were that the taking of goods by Crossland and their asportation were clearly established. So larceny was not only shown to have been the reason for breaking and entering of the dwelling house and the reason for his being in or upon the dwelling house, but the larceny was shown to have been completed. Therefore, although Crossland possessed an implement contemplated by (1)(a) it could not be presumed that he had an intent feloniously to break and enter the dwelling and although he was found in or upon the dwelling, the intent to steal contemplated by (2) was not present. This was so because the larceny was then a fait accompli; the possession of the implement could not show an intent to break and enter a dwelling to do an act he had already done, and his being seen walking out of the house carrying the stolen goods could not support a rational inference that he then had an intent to steal what he had already stolen and carried away. Thus the Crossland holding would not be applicable unless: as to situation (1)(a) the felonious act which was the intent of the breaking and entering had been consummated, the mere completion of the breaking and entering itself not being sufficient to invoke it; as to situation (1)(b) the felonious assault had been consummated; as to situation (2) the larceny had been consummated. So in Knight v. State, 7 Md.App. 282, 286, 254 A.2d 379 we held that the evidence was sufficient to sustain the conviction of being a rogue and vagabond where the storehouse breaking was completed, but the larceny was not. In Matthews v. State, 8 Md.App. 712, 715, 261 A.2d 804 we held, under the circumstances there existent, that for Crossland to apply the larceny must be at a practical as well as a legal end. In Radcliffe v. State, 6 Md.App. 285, 251 A.2d 11, we felt that Crossland did not apply because not even the breaking and entering of the storehouse was consummated. See Hebb v. State, 10 Md.App. 145, 150, 268 A.2d 578; Johnson v. State, 10 Md.App. 652, 665-666, 272 A.2d 422. Compare Wilson v. State, 7 Md.App. 41, 253 A.2d 439 in which we found that the circumstances under which the accused was found upon the dwelling house were not sufficient to show an intent to steal.

The Instant Case

At a bench trial in the Criminal Court of Baltimore Larry Downes was found guilty of being a rogue and vagabond and with possession of narcotic paraphernalia.

Evidence adduced by the State tended to show that Officer James Archey of the Baltimore City Police Department, Canine Squad, received a call about 2:00 A.M. on 8 July 1969 over his police radio that a breaking and entering was in progress at 2321 Reisterstown Road, a beauty shop. Attempting to go to the rear of that address he drove onto Orem Road from Reisterstown Road and stopped by an alley running in the rear of 2321 Reisterstown Road. He saw appellant about 50 to 70 feet up the alley. As he was getting out of the car he heard appellant holler something and within seconds thereafter two other males ran out of the rear of 2321 Reisterstown Road, coming through a gate in the fence about 4 feet high. They were heading for an alley intersecting the alley in the rear of the storehouse. The officer called for them to stop and when they kept running he sent his dog who caught the first one he came to, John Robert Shaw. ³ The third person escaped. The officer walked up to Shaw who was being held by the dog and started to search him. Shaw pulled a knife with his left hand and the dog grabbed his left arm and knocked Shaw down. Shaw dropped the knife and the officer recovered it. It had 'like dust on it.'

Officer Edward Hamilton of the Baltimore City Police Department also responded to the radio call, arriving on the scene about 30 seconds after receiving it. He met Canine Officer Archey and saw two men, one running from the rear of the beauty shop being apprehended by Officer Archey and one 'walking briskly' on Orem Street. He stopped the latter; it was appellant. ⁴ He was carrying a little paper bag. It contained a hypodermic syringe and needle. The officer went to the rear of the beauty shop and 'found that the screen on the back window had been pulled up.' On the ground below the window was a white substance. '(I)t was some type of a cement, or something that was holding a bar, a metal bar going across the window into the bricks, and this had been scraped away or chopped away, and that is why it was all over. * * * Well, we figured that they used a knife to scrape the cement away.' A mustard colored hat was on the ground under the window. About an hour earlier the officer had seen Shaw outside a tavern. He was wearing a hat...