Hardison v. State

• Decision Date: 30 June 1961
• Docket Number: No. 314,314
• Citation: 172 A.2d 407,226 Md. 53
• Parties: John Charles HARDISON, Charles Fountain Grant and Carson Hardison v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 53

226 Md. 53

172 A.2d 407

John Charles HARDISON, Charles Fountain Grant and Carson Hardison v. STATE of Maryland.

No. 314.

Court of Appeals of Maryland.

June 30, 1961.

Robert J. Cooke, Westminster, for appellants.

J. Thomas Nissel, Sp. Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Joseph D. Buscher, Sp. Asst. Atty. Gen., and Donald C. Sponseller, State's Atty. for Carroll County, Westminister, on the brief), for appellee.

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

PRESCOTT, Judge.

The appellants, John Charles Hardison, Charles Fountain Grant and Carson Hardison, together with a fourth defendant, Robert William Blymire, were indicted by the grand jury for Carroll County in an indictment which charged grand larceny in the first count, and breaking and entry in the second count. On August 18, 1960, the appellants moved for a severance, which was granted. Upon arraignment Blymire pleaded guilty. The appellants pleaded not guilty and elected to be tried by a jury, which was duly impaneled. On the same day the jury returned their general verdict of guilty as to each of the appellants. On August 19, Blymire was sentenced to five years in the Maryland Penitentiary, but the sentence was suspended on condition that he be of good behavior and that he be placed under the parole department of the State of Florida. On August 22, all three appellants were sentenced to five years in the Maryland Penitentiary and have brought this appeal.

On or about February 6, 1960, a store known as Dutterer's of Manchester was broken into and $2,500 was taken from the safe, which had been pried open. Dutterer's of Manchester is a supermarket, located in Greenmount, in Carroll County, Maryland.

Blymire testified for the State against the appellants. He stated that the appellants and he had recently come from Florida, traveling in an automobile that either belonged to Grant or his brother. They went to Blymire's sister's home in Glen Rock, Pennsylvania. They left his sister's home about 9:00 or 10:00 p. m. and started back to North Carolina. When they 'got outside of Manchester there, near where Dutterer's Store [was] located,' he was told to turn in a side road and stop. He did so, and the other three 'went around to the trunk.' He drove the car down this side road for about a half a mile and turned around, and, when he returned to the spot where the other three had left the car, they were walking down to meet him. Two of them were carrying boxes and the other had a screw driver and a hammer. One of them told him they had 'hit a jackpot,' and another 'said something about tearing up a tin can [a frail safe].' They wanted some place to hide until daylight, so they went back to his sister's home, arriving there about midnight, where they divided the money.

Gloria Anderson, a sister of Blymire, testified that her brother and one of the appellants had come into her home at about 9:00 p. m. on February 5th. After a short stay, they left and returned sometime after midnight accompanied by the other two appellants. The men brought with them a large metal box that contained money. Two of them had revolvers. The money was spread upon the table and divided into four piles. They would not tell her where they had obtained it. After the money was divided, they left. This testimony of Gloria Anderson was confirmed by her husband, although he was not certain of the date.

The appellants present the following contentions:

1. That the judgment and sentence imposed upon them was invalid because (a) the offense for which they were convicted was no offense within the meaning of Code (1957), Article 27, § 32, ¹ upon which the second count of the indictment was drawn, in that they were charged with breaking and entering a 'storeroom' rather than a 'storehouse'; and (b) because they could not be convicted under the first count of the indictment which they claim was dependent upon the validity of the second count, and further because the first count charged the defendants with having 'feloniously' stolen, taken and carried away $2,500, rather than having stolen the money with the felonious intent to convert it to the appellants' own use.

2. That the trial court erred in failing to instruct the jury as to the definition of an accomplice, and as to the law with respect to the corroboration of the accomplice's testimony.

3. That in any event the corroboration of the accomplice's testimony was insufficient to justify the jury's verdict of guilty.

I

Neither (a) nor (b) under contention I was properly reserved for our determination, but, in view of the fact that the case must be remanded for a new trial, we deem it desirable to pass upon them. Maryland Rule 885.

(a)

This claim of error contains two thrusts. The appellants first contend that Section 32 ² makes it unlawful to break into a storehouse, and therefore they could not properly be convicted under an indictment that charged them with breaking into a storeroom. The claim has little, if any, merit.

The building broken into was a supermarket for retail sales of food, which engaged 25 to 30 employees. It is a matter of general knowledge that supermarkets store and sell large amounts of goods, wares and merchandise. A store has been stated to be a house where goods are bought, sold or stored. Campbell v. State, 170 Ark. 936, 282 S.W. 4, 5; DeWolfe v. Pierce, 196 Ill.App. 360, 361. And it has been held that the context may enlarge or restrict its ordinary meaning. Debenham v. Short, Tex.Civ.App., 199 S.W. 1147. Storehouse is defined as: '1. A house or building in which things are stored. 2. Any repository or source of abundant supplies, * * *,' and storeroom is defined as: '1. A room in which stores are kept. 2. A room or space for storage.' The American College Dictionary, p. 1192. Section 32 provides that 'breaking a dwelling house * * * or breaking a storehouse, filling station, garage, trailer, cabin, diner, warehouse or other outhouse * * *' under certain conditions shall be unlawful. The following section, 33, states that 'breaking into any shop, storeroom, filling station, garage, trailer, cabin, diner, tobacco house or warehouse, although the same be not contiguous to or used with any mansion house * * *' shall constitute a criminal offense under certain other conditions. (All emphasis ours.) A consideration of the definitions given above and the manner in which the legislature has used the words 'storehouse' and 'storeroom' makes it clear, we think, that the legislature has used the words interchangeably and in such a manner as to have the same meaning. We therefore hold that it was not improper for the indictment to charge the appellants with breaking and entering a 'storeroom,' and that the supermarket broken into came within the definition of such a storeroom.

The second thrust under this subheading is that Section 32 only intended to make it a crime to break and enter the buildings named therein, when they were contiguous to a dwelling house. The appellants argue that the common law and ancestry of the statute indicate that the legislature, in enacting Section 32, only intended to encompass within its scope such buildings as are contiguous to, or within the curtilage of, a dwelling house. Whatever slight force the argument has because of the use of the words 'or other out-house,' compare Jones v. Hungerford, 4 Gill & J. 402, is completely overcome by a consideration of the other places named, such as filling stations, trailers, cabins and diners, which are seldom used in connection with dwelling houses. We deem the contention unsound.

(b)

The appellants also claim that the first count of the indictment was dependent upon the validity of the second count, and, since the second count was defective, they could not properly be convicted under the first count. The contention is devoid of merit. The first count charged them with grand larceny, a felony, and the second count charged the breaking and entering of a storeroom with intent to steal goods of over the value of $25, a misdemeanor. The validity of the first count was in nowise dependent upon the validity of the second. In any event, our holding above that the second count was not defective is, in itself, a complete answer to this claim of error.

The appellants' second 'bite' under this subheading is likewise without substance. They, in effect, advance the theory that the first count was defective in that it stated the defendants 'did feloniously steal, take and carry away' $2,500, rather than that they ...