Jung v. State, 215

• Decision Date: 07 April 1970
• Docket Number: No. 215,215
• Citation: 263 A.2d 618,9 Md.App. 300
• Parties: Frank JUNG v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 300

9 Md.App. 300

263 A.2d 618

Frank JUNG v. STATE of Maryland.

No. 215.

Court of Special Appeals of Maryland.

April 7, 1970.

Donald Daneman, Baltimore, with John D. Hackett, Baltimore, on the brief, for appellant.

Donald Needle, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Samuel A. Green, Jr., State's Atty., and Gary H. Huddles, Asst. State's Atty., for Baltimore County, on the brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

MORTON, Judge.

The appellant was convicted of burglary in a non-jury trial in the Circuit Court for Baltimore County and sentenced to three years imprisonment.

As a basis for his contention that the evidence was legally insufficient to sustain his conviction, appellant argues that the State failed to prove that the alleged breaking and entering occurred 'in the nighttime.' We agree.

Corporal George Charles Wyatt, a Maryland State Police Trooper, testified that 'at approximately 1:00 o'clock on November 28th, I took my family over to my mother's for Thanksgiving dinner, for approximately an 11 to 12 hour period from approximately 1:00 in the afternoon to approximately midnight that night.' He then described how the house had been broken into and listed the household items, including a gun, which were missing. At the conclusion of the case for the defense, the following colloquy occurred between the trial judge and Corporal Wyatt:

'THE COURT: Corporal Wyatt, just stay where you are; I want to ask you a question.

CORPORAL WYATT: Yes, sir.

THE COURT: How close is your home to adjacent homes?

CORPORAL WYATT: Twenty feet, Your Honor.

THE COURT: Twenty feet?

CORPORAL WYATT: Yes, Sir.

THE COURT: You mean there's one on each side of you?

CORPORAL WYATT: Yes, Sir.

THE COURT: Were the occupants of those homes at home that afternoon, if you know?

CORPORAL WYATT: Well, directly across the street they had a housewarming. I asked them about it; it started about two in the afternoon and went on until ten o'clock at night, in the evening, and they had people in the house all that time.

THE COURT: Can the window that was broken in your house be observed from that house?

CORPORAL WYATT: Yes.

THE COURT: Did anyone there observe anyone around your house?

CORPORAL WYATT: The entire neighborhood was canvassed by myself, and no one had seen anything.'

Thereafter, in response to a question by appellant's trial counsel, Corporal Wyatt testified that he was unable to determine what time his home had been entered.

An essential element of the crime of burglary is proof that the breaking and entering occurred in the nighttime. Reagan v. State, 4 Md.App. 590, 244 A.2d 623. On the record before us there was no direct evidence concerning the time the home was entered. Nor, in our opinion, was there sufficient indirect evidence from which the trial judge could reasonably infer beyond a reasonable doubt that the crime occurred in the nighttime. ¹ Williams and McClelland v. State, 5 md.App. 450, 247 A.2d 731.

The evidence presented at trial was equally conducive to a finding that the crime occurred in the daytime. Without some evidence that the house was actually observed to be intact during all of the daylight hours or that appellant was observed in the area of the victim's...