Hall v. State, 339
| Decision Date | 14 February 1974 |
| Docket Number | No. 339,339 |
| Parties | Larry Gale HALL v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
R. Roland Brockmeyer, Baltimore, for appellant.
Mary Elizabeth Kurz, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and Donald C. Cole, Jr., State's Atty., Cecil County, on the brief, for appellee.
Argued before ORTH, C. J., and MOYLAN and MENCHINE, JJ.
No proposition is more bedrock than that a crime consists of an actus reus and a mens rea and that the two must coexist. Where there is no coincidence in time between the guilty act and the guilty mind, there is, by definition, no crime. Conversely and just as inexorably, where there is such temporal unity, there is crime. The overlooking of this fundamental converse has led many defendants to an overly broad reading of Crossland v. State, 252 Md. 70, 249 A.2d 153.
The appellant, Larry Gale Hall, now joins that legion. His peers in Cecil County convicted him of 1) roguery and vagabondage, 2) grand larceny and 3) assault. The sentence for being a rogue and vagabond was made concurrent with the larceny sentence. He protests, inter alia, that the alleged special mens rea of 'an intent to steal any goods or chattels' had already lapsed into history when the alleged actus reus of 'being found in or upon any dwelling house' occurred, thereby dooming his conviction to the fate of Crossland. He protests in vain.
In Downes v. State, 11 Md.App. 443, 445, 274 A.2d 663, Chief Judge Orth pointed out that Art. 27, § 490, establishes three distinct and alternative situations under which a person might 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.
In the case at bar, we are dealing exclusively with situation (2). Stripped to essentials, the following facts were fairly inferable from the evidence:
The appellant and two confederates, Albert David Skull * and John Henry Barnett, went in a stolen automobile to the trailer residence of David Leigh Crane at shortly before 6 a. m. on January 1, 1973. Although the appellant had known Crane for some eight years, Crane was not at home and had not given the appellant or anyone else permission to enter his trailer. The appellant knocked loudly and called out Crane's name, receiving no reply. A pane of glass near the door was shattered, leaving a hole large enough for a man's arm to enter. Whether the appellant reached in and unlocked the door or whether the door was already unlocked is in some dispute, but, in either event, the appellant and Barnett entered. Skull remained outside in the automobile.
To reach the Crane trailer, one must leave State Highway 272 and travel up a dirt road, passing en route the residence of James Ellwood Racine, who had leased the trailer in question to Crane. The predawn visit of the appellant and Barnett to the trailer was interrupted by the unexpected arrival of James Racine and his son Eugene. They had both been awakened by the rapping upon the door and the sound of shattering glass. They saw the lights of the strange automobile in front of the Crane trailer. The Racines positioned a truck athwart the dirt road to block egress by the vehicle of the intruders and then moved in for closer investigation. In some confused sequence, a loaded shotgun, the property of Crane, was fired from inside the trailer by Barnett. The two Racines returned pistol fire. Skull, still unobserved on the outside of the trailer, hit the ground and slithered beneath a third parked vehicle where he remained until apprehended by State troopers some short time afterward.
The appellant made a run from the trailer to his automobile, shielding himself with a loaded duffle bag belonging to Crane. The bag was thrown into the rear of the car. Barnett made his dash for the car simultaneously, crawled into it and continued firing toward the Racines. The appellant and Barnett attempted to make a getaway in the car but were unable to get around the truck placed across their path. They then abandoned the vehicle and fled overland.
Barnett was arrested on a public road a short time later. He was carrying both a shotgun and a knife belonging to Crane. The shotgun was valued by Crane at $75 and the knife, at $15. From the abandoned automobile, there was recovered a .22 caliber rifle owned by Crane and valued by him at $50, the duffle bag already referred to, and a radio, which was not in the duffle bag and which was identified by Crane as his property. He placed a value on the radio of $20.
The appellant was arrested at approximately 8:15 that evening walking northbound on State Route 272. He points out that at the time of apprehension, he was possessed of neither burglar's tools nor offensive weapons. That fact is irrelevant since we are dealing with rogue and vagabond situation (2) which requires no such possession, in contradistinction to rogue and vagabond situations (1)(a) and (1)(b), which do establish such respective possession as necessary elements of the crime.
The appellant also stresses, to no clear end, that he was 'apprehended' some 12 hours after the alleged offense and 'between a mile and one-half to two miles away.' He seems to be groping for the point made by a similarly situated defendant in Thomas v. State, 1 Md.App. 528 at 531, 231 A.2d 915 at 917:
'The thrust of the appellant's argument in support of his first two contentions is that since the appellant was not physically apprehended by the police in or upon the dwelling house he is not within the provisions of the statute.'
In the Thomas case, as here, the defendant was not physically apprehended in or upon the dwelling. He was observed initially suspiciously near the house and later seen by the police fleeing the general vicinity. His fingerprint, however, was found inside the house. We there pointed out, at 1 Md.App. 533, 231 A.2d 918, that there is no requirement that a defendant be physically apprehended in or upon the dwelling in order to establish his earlier presence in or upon the dwelling:
'(W)e reject the appellant's construction of the statute that a person must be physically apprehended in or upon the dwelling to prove the commission of the offense. We do not agree that this part of the statute requires a person to be arrested flagrante delicto. We deem it significant that with respect to the offense designated by the first part of the statute, the words 'shall be apprehended' are used, while with respect to the third part of the statute, here considered, the words 'shall be found' are used with no reference to 'apprehended."
The central thrust of the appellant's argument, however, is that proof (in this case amounting to conviction) of consummation of the intended larceny precludes, under Crossland, conviction for the essentially inchoate crime of roguery and vagabondage-subvariety (2). That is not the holding of Crossland. Crossland dealt with a very limited and extraordinary factual situation. (It thrice referred to its 'unusual circumstances' or 'unusual fact.') The two-witness, non-jury trial in Crossland was summary in the extreme; the testimony consumed but thirteen pages of transcript. An alert officer first noticed Crossland 'walking out of the front door of a dwelling house' carrying 'a portable record player in one hand and a transistor radio in the other.' He did not give immediate pursuit but checked out the dwelling, learning that a larceny had been committed. Taking up the trail, by taxicab, the officer apprehended Crossland some six minutes later, some three blocks away, possessed of a screwdriver.
Crossland considered two distinct subvarieties of roguery and vagabondage-(1) (a) being apprehended possessed of burglar's implements from which might be presumed an intent feloniously to break and enter a dwelling and (2) being found in or upon any dwelling with an intent to steal any goods or chattels. It pointed out, quite properly, that the respective 'intents' had to correspond in point of time with the respective guilty acts of 'being apprehended possessed, etc.' and 'being found in or upon, etc.' It simply pointed out that one can no longer 'intend' to do an act which has already been done-that once intended acts are faits accomplis, the intent can no longer endure. Crossland simply applied to the limited fact situation before it the fundamental principle that an actus reus and a mens rea must coincide to establish a crime. Crossland must be carefully read in the context of its very limited fact situation, however.
With respect to rogue and vagabond situation (1)(a), Crossland merely held that when the defendant there was 'apprehended' possessed of a burglarious implement, there no longer existed an intent 'to break and enter' the dwelling which had already been successfully broken and entered some six minutes before. Crossland did not consider, and therefore did not preclude, the possible 'intent' to break and enter some other dwelling at some later time. That possible finding had not been made by the lower court and that theory of culpability was not argued by the State. Crossland did not address itself in any way to such a hypothetical and cannot be read as intimating anything with respect thereto. Indeed, were such a finding of fact to be made, it seems self-evident that an actus reus and a mens rea would exist concomitantly, thereby constituting an act of crime.
Similarly with respect to rogue and vagabond situation (2), Crossland...
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