Putnam v. State

• Decision Date: 05 May 1964
• Docket Number: No. 212,212
• Citation: 200 A.2d 59,234 Md. 537
• Parties: James William PUTNAM v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 537

234 Md. 537

200 A.2d 59

James William PUTNAM v. STATE of Maryland.

No. 212.

Court of Appeals of Maryland.

May 5, 1964.

Roger C. Duncan, Towson, for appellant.

John W. Sause, Jr., Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., both of Baltimore, and Frank H. Newell, III, and Gerard V. Caldwell, State's Atty. and Asst. State's Atty., respectively, for Baltimore County, both of Towson, on the brief), for appellee.

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

BRUNE, Chief Judge.

The appellant was tried before a judge, sitting without a jury, in the Circuit Court for Baltimore County under an information charging him with attempted 'housebreaking' of an 'outhouse,' was found guilty, and was sentenced to five years' imprisonment. He appeals.

The appellant raises three contentions (though not in this order): (a) that the information fails to state a criminal offense; (b) that even if it did, the evidence is insufficient to sustain the conviction; and (c) that even if the first two contentions were to be rejected, the sentence exceeds the permissible limit.

The information charges that the appellant 'unlawfully did attempt to commit an offense prohibited by law, to wit: did attempt to commit housebreaking of the outhouse, to wit: the store of Joseph Kleiman, that being an offense prohibited by law, and in such attempt did * * * certain overt acts toward the commission of said offense, to wit: did attempt to enter said outhouse by * * * attempting to pry open a door' thereof, but 'did fail in the perpetration of said offense and was intercepted and prevented in the execution of the same.' There was evidence to the effect that the appellant and a companion tried to break into a drugstore at about two o'clock one morning, but were interrupted in this effort by the police, that they both fled, and that the appellant was caught after a chase.

In the trial court the appellant (then represented by counsel other than his counsel on appeal) made no objection at all to the sufficiency or to the form of the information. The preliminary question at once arises whether, in these circumstances, it may be raised on appeal. We shll assume, without deciding, that it is open here. ¹

The next question then is whether or not the information sufficiently states an offense to sustain the conviction. The rule which seems to be generally recognized draws a line of demarcation between an indictment or information which completely fails to state an offense and one which alleges all the elements of the offense intended to be charged and apprises the accused of the nature and cause of the accusation against him, even though it is defective in its allegations or is so inartificially drawn that it would have been open to attack in the trial court. 27 Am.Jur., Indictments and Informations, § 189, p. 735. In § 191 of the same work, p. 736, it is stated that 'a verdict will not cure a failure to allege a criminal offense or the omission of any essential allegation; any such objection is fatal after as well as before verdict.' See also: Wharton on Criminal Law and Procedure (Anderson Ed.), §§ 1881, 1883, 1885; 42 C.J.S. Indictments and Informations § 319, pp. 1348-51; People v. Green, 368 Ill. 242, 13 N.E.2d 278, 115 A.L.R. 348; State v. Watson, 356 Mo. 590, 202 S.W.2d 784; State v. Zaras, 81 Ohio App. 152, 78 N.E.2d 74 (where the defendant had pleaded guilty); State v. Ryea, 97 Vt. 219, 122 A. 422; State v. Gosselin, 110 Vt. 361, 6 A.2d 14; Whitted v. State, 188 Ark. 11, 63 S.W.2d 283; Houston v. State, 203 Ind. 409, 180 N.E. 582; State v. McDonald, 178 La. 612, 152 So. 308; State v. Hall, 54 Wash. 142, 102 P. 888; State v. O'Brien, 93 Conn. 643, 107 A. 520; State v. Miller, 24 Conn.Sup. 247, 190 A.2d 55. See, on the other hand, Laque v. State, 207 Md. 242, 113 A.2d 893, cert. den. 350 U.S. 863, 76 S.Ct. 105, 100 L.Ed. 765 and Kares v. State, 215 Md. 396, 137 A.2d 712, in which the warrant or indictment was or may have been defective, but did not fail to state any offense. In Johnson v. State, 223 Md. 479, 164 A.2d 917, referred to by the appellee, the indictment was held sufficient. In Kellum v. State, also referred to by the appellee, 223 Md. 80, 162 A.2d 473, no question was raised as to the sufficiency of the indictment, but this Court noted that no point was made of the case having been treated as one for simple assault, without any regard to the fact that the actual indictment charged assault with a specific intent, and observed that any attack on the indictment appeared to have been waived. (Footnote 1, 223 Md. at pp. 82-83, 162 A.2d at pp. 474-475.)

The appellant contends that 'housebreaking,' as such, is a crime not recognized at common law and that the information, in order to comply with the provision of Art. 21 of the Maryland Declaration of Rights that 'in all criminal prosecutions, every man hath a right to be informed of the accusation against him;' must state some statutory offense in the terms required by the laws of this State. We need not pass upon the correctness of the appellant's assertion (for which he cites no authority) that housebreaking as such is not an offense recognized at common law, nor shall we discuss it at any length. The term 'housebreaking' does have a legal significance, which, without any further specification, relates to a dwelling. Radin's Law Dictionary defines it as '[t]he crime of forecible entry into a dwelling place with the intention to commit a felony. If done at night it constitutes the offense of burglary.' Black's Law Dictionary (4th Ed.) contains an almost identical definition, and similar definitions may be found in such general dictionaries as the New Century and Webster's New International. See also 3 Stephen's History of the Criminal Law of England (1883), p. 150, where in commenting on the English Larceny Act of 1861, the author states that burglary was a common law crime and goes on to say: 'The cognate offense of housebreaking has been made the subject of a surprising number of minute distinctions, the nature and history of which are not worth the trouble of relating or stating.'

Housebreaking is an offense long known under the law of Maryland. Without defining the terms, sec. 2 of ch. 26 of the Acts of 1715 excepted cases of robbery, burglary and housebreaking from the jurisdiction of justices of the county courts. Sec. 3 of ch. 4 of the Acts of 1729 recited that doubts had arisen as to whether felons who had 'broke and entered several shops, storehouses or warehouses, not contiguous to or used with any mansion house, and stolen from thence several goods and commodities,' were excluded from the benefit of clergy and then enacted that persons convicted of breaking into any such shop, storehouse or warehouse and stealing from thence goods to the value of five shillings should suffer death as felons, without benefit of clergy. This statute was followed by another of generally similar terms enacted as secs. 2 and 3 of ch. 2 of the Acts of 1737. This latter statute was to continue in force for three years, but was extended from time to time on numerous occasions, and was enacted as a permanent law by ch. 71 of the Acts of 1798. See Kilty's Laws of Maryland (1799), the index to which refers under 'housebreaking' to the Acts of 1729 and 1737 above mentioned. There were also sec. 10 of ch. 57 of the Acts of 1793 and secs. 5 and 6 of ch. 138 of the Acts of 1809, which will be referred to further a little later on.

There are three statutes under which an offense involving breaking an 'outhouse' or store may be charged. One is sec. 32 of Art. 27 of the Code (1963 Cum.Supp. to the 1957 Ed.), the second is sec. 33 of that Article (also 1963 Cum.Supp. to the 1957 Code), and the third is sec. 342 of the same Article (1957 Code). Sec. 32, in addition to proscribing 'daytime burglary' of a dwelling, makes it an offense to break a storehouse or other outhouse in the day or night with intent to commit murder or felony or to steal goods worth $100 or more. Sec. 33 makes it an offense to break into a shop or storeroom and to steal goods worth $5.00 or more. Sec. 342 makes it an offense to break into a shop, warehouse, etc. (though not contiguous to or used with any mansion house) with intent to steal goods worth less than $100, or to break into any shop, warehouse, etc. and steal money or goods of a value of less than $5.00.

It will be noted that each of these statutes requires not only a breaking, but also either an intent to steal or an actual stealing in order to constitute a violation of the statute. 'Housebreaking,' as we have seen, is a term long in use in Maryland. In the indices to the Codes of 1860, 1879, 1888, 1951 and 1957, the references under that heading are generally, directly or through a cross-reference, to what are now secs. 29, 32, 33 and 342 of Art. 27 or their predecessors, though in the 1957 index, under the heading of 'Burglary, Breaking and Entering,' to which one is referred under 'Housebreaking,' some other provisions (not here relevant) are also listed. In the Codes of 1860 and 1879 the references are only to the predecessors of secs. 32 and 33. The origin of these sections and of sec. 342 is ascribed to secs. 5 and 6 of ch. 138 of the Acts of 1809, which was an Act of wide scope concerning crimes and punishments. Intent to commit murder or felony or to steal or actual stealing has always been an ingredient of an offense under them. Sec. 32 also had a precursor to some extent in sec. 10 of ch. 57 of the Acts of 1793. Under that statute, too, an intent to commit murder or felony was required in addition to breaking into a dwelling by day or a storehouse by day or at night in order to constitute an offense, the penalty for which might be up to seven years imprisonment.

The information in this case is not in a form to be commended. We think that it should have been more specific as to the intent to steal and as to the value...