Drouin v. State

• Decision Date: 14 April 1960
• Docket Number: No. 141,141
• Citation: 160 A.2d 85,222 Md. 271
• Parties: Leo Paul DROUIN v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 271

222 Md. 271

160 A.2d 85

Leo Paul DROUIN v. STATE of Maryland.

No. 141.

Court of Appeals of Maryland.

April 14, 1960.

Nicholas J. Fotos, Annapolis, for appellant.

Clayton A. Dietrich, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., C. Osborne Duvall, State's Atty., for Anne Arundel County, John A. Blondell, Asst. State's Atty., for Anne Arundel County, Annapolis, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

PRESCOTT, Judge.

Having been found guilty by the Circuit Court for Anne Arundel County, sitting without a jury, on the first two counts of each of two separate indictments, after consolidation by agreement for the purposes of trial, and being sentenced to confinement as a result thereof, the defendant appeals. The first indictment contained three counts, charging him with burglary, larceny and receiving stolen goods; the second, likewise in three counts, charged him with burglary, statutory theft and receiving stolen goods. No question is here involved concerning the counts that charged him with receiving stolen goods.

Harvey J. Collinson, his wife and daughter left their home located at 604 S. Crain Highway, Glen Burnie, Maryland around 7:00 P.M. on May 22, 1959, and returned home that same evening at approximately 10:00 P.M. They then discovered that someone had broken into and entered their home during their absence. Upon entering their home, it appeared to have been ransacked; someone had apparently rifled their bureau drawers and scattered the clothing that had been therein. Shortly thereafter, Collinson telephoned the Ferndale Police Station and reported the breaking and entering. Three police officers drove to the Collinson home sometime after the telephone call, but prior to midnight. They investigated the premises and were told by Collinson that a watch, a .22 caliber pistol and a Ronson lighter were missing. During this period of investigation, Sergeant Gleim received information from several people that a person described as the appellant was a boarder in the house next door to the Collinson's and was seen about 8:00 P.M. on May 22, 1959, '* * * act[ing] in a suspicious manner, seemed to be retreating to hiding places when anybody approached or cars came up and down the Crain Highway with bright lights.' Shortly after midnight, in the early morning of May 23, 1959, a taxi-cab pulled up in front of the house next door (where the appellant had a room) and the appellant was seen getting out of the cab, but apparently changed his mind and got back into the cab. The cab then made a U-turn and headed back in the direction from whence it had come. Officers Gleim and Jager got in one patrol car and Officer Golebiewski operated the other car. One squad car overtook the cab and forced it to come to a stop by pulling in front of it and the other closed in behind it. The three officers approached the cab and the appellant got out of the cab and was advised by Officer Gleim that he was under arrest. They proceeded to search the appellant's person and the cab. They seized articles of personalty which were later identified as articles missing from the Collinson house and the residence of one Alvin Wolfe, which had also been broken and entered the same night. The officers failed to find a diamond ring reported later to be missing by the Collinsons. Subsequent to the appellant's arrest, the breaking and entering of the Wolfe residence was reported. Some of the articles seized were later identified by Mr. Wolfe as being the articles missing from his house. The appellant did not make any statements of admission or confession.

He was indicted by the grand jury and arraigned before the Circuit Court of Anne Arundel County, and pleaded not guilty in each case. Before his trial, the court appointed counsel to defend him, who requested and was granted permission to withdraw appellant's pleas in order to submit two motions in writing: a motion to dismiss the indictments and a motion to suppress the evidence. The court overruled the motion to dismiss and postponed its ruling on the motion to suppress until some appropriate time during the course of the trial. During the trial the court overruled appellant's motion to suppress the evidence and at the termination of the State's case, the court overruled the appellant's motion for directed verdicts on each and every count. It is from these rulings that this appeal is taken.

I

The first count of each indictment charged that the defendant, 'feloniously and burglariously did break and enter the dwelling house,' etc. The appellant objects to the use of the word 'feloniously,' contending that the offenses of which he was accused in the first counts were misdemeanors; therefore his motion to dismiss them should have been granted. Whittington v. State, 173 Md. 387, 196 A. 314.

His entire argument in this regard is based upon a statement in State ex rel. Copeland v. Warden, 1950, 194 Md. 717, 718, 70 A.2d 813, a habeas corpus proceeding, wherein this Court said: 'Burglary, under the Maryland statute, Article 27, Section 33, is not a felony. Bowser v. State, 136 Md. 342, 344, 110 A. 854 ¹ * * *.' The accused here was indicted under Code (1957), Article 27 [all references hereafter made to the Codes will be to Article 27, unless otherwise specified], Section 30. At the time of the decision in Copeland, (1950), this Section 30 was Section 33 of the 1939 Code, which had not at that time been supplanted; hence, if the Court were, in reality, referring to the 1939 Code, it would lend considerable substance to the appellant's contention. However, it seems clear that the Court, in the Copeland case, was referring to Section 33 of the Code of 1912, which was then Section 34 of the 1939 Code. It supported the statement that 'burglary, under the Maryland statute, Article 27, Section 33, is not a felony' by the immediate citation of the Bowser case, which specifically dealt with Section 33 of the 1912 Code [Section 32 of the 1957 Code], and held that the offenses described therein constituted misdemeanors and not felonies.

Moreover, Section 30 of the 1957 Code, under which the defendant was indicted reads:

'Every person, his aiders, abettors and counsellors, who shall break and enter any dwelling house in the nighttime with the intent to steal, take or carry awary the personal goods of another of any value therefrom shall be deemed a felon, and shall be guilty of the crime of burglary.'

It is immediately noted that the statute explicitly says that whoever violates it shall be deemed a felon and shall be guilty of burglary. A felon is a person who has committed a felony, Black's Law Dictionary (4th Ed.), p. 743, Websters' New International Dictionary of the English Language (2nd Ed. 1953), p. 931, and burglary was one of the common-law felonies. We have no hesitation in concluding that this Court in the Copeland case, in the sentence quoted, referred to Section 33 of Article 27 of the 1912 Code, and that the offense described in Code (1957), Article 27, Section 30, constitutes a felony.

II

In this assignment of error, the appellant asks us to rule that his motion to suppress the evidence taken from the accused at the time of his arrest should have been granted on the ground that his arrest was unlawful and the evidence obtained as a result of this unlawful arrest should not be used against him at his trial. As evidence is admissible against an accused in Maryland whether lawfully obtained or not in felony cases, Davis v. State, 189 Md. 640, 645, 646, 57 A.2d 289, this objection could only be aimed at the misdemeanor count, and the appellant limits this claim of error to the 'admissibility of that evidence (the evidence taken from the accused as a result of his search after arrest) as applicable to the second count (statutory theft)' of the second indictment, relying upon Code (1957), Article 35, Section 5, [The Bouse Act].

As we have held above that the appellant's motion to dismiss the burglary counts was properly overruled, he stands properly convicted of burglary under the second indictment and sentenced to one year's confinement for the same; so, from a practical point of view, even if he be successful in this contention, it will avail him little relief. However, as burglary and theft are separate and distinct offenses, and the defendant should not be improperly convicted of any offense, we shall consider and determine the question.

There can be little doubt that a police officer may lawfully arrest a person when he has reaonable ground to suspect that a felony has been committed, whether or not in his presence or view, and reasonable ground to believe the arrestee has committed it. Mason v. Wrightson, 205 Md. 481, 486, 109 A.2d 128; Kauffman, The Law of Arrest in Maryland, 5 Md.L.Rev. 125, 159. And, after a lawful arrest has been made, the officer, as an incident thereto, may search the offender and seize any evidence of the crime. Mason v. Wrightson, supra, and cases cited.

At the trial, the State attempted to show that the arresting officers had reasonable grounds to suspect that a felony had been committed and that the appellant was the guilty party, in order to establish a lawful arrest so that the evidence obtained by them, as a search incident thereto, would be admissible against the accused relative to the misdemeanor count as well as the counts that charged felonies. ² To this effect, the State offered proof that the officers knew the Collinson home had been burglarized and certain personal property stolen therefrom. The officers then testified that they had been informed by certain neighbors of the accused (he roomed next door to the Collinsons) that he had been seen in the rear of the Collinson home shortly after the Collinsons left it on the evening of May 22 acting in a suspicious manner which we have previously described. As stated above, this evidence was offered for the specific...