Reagan v. State

• Decision Date: 25 July 1968
• Docket Number: No. 282,282
• Citation: 4 Md.App. 590,244 A.2d 623
• Parties: William Francis REAGAN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 590

4 Md.App. 590

244 A.2d 623

William Francis REAGAN v. STATE of Maryland.

No. 282.

Court of Special Appeals of Maryland.

July 25, 1968.

Orie Seltzer, Washington, D. C., with whom were Theodore E. Breault, and Herbert P. Suskind, Washington, D. C., on the brief for appellant.

Thomas N. Biddison, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr. and John R. Miles, State's Atty. and Asst. State's Atty., for Prince George's County, on the brief, for appellee.

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

ORTH, Judge.

The appellant was found guilty by a jury in the Circuit Court for Prince George's County of housebreaking and grand larceny, being the first and second counts respectively of the indictment under which he was charged. Concurrent sentences of 10

years on the first count and 15 years on the second count were imposed 'to run consecutively with any sentence previously imposed by any Court of competent jurisdiction.'

THE INDICTMENT

The first count of the indictment charged that the appellant '* * * the dwelling house of one Gaston Paul Jennett and Sheila Jennett * * * feloniously did break with intent to commit a certain felony there and therein, to wit: with intent then and there certain goods and chattels in the said dwelling house then and there being found, then and there feloniously to steal, take and carry away, contrary to the form of the Statute in such case made and provided, and against the peace, government and dignity of the State.' The appellant contends that the lower court erred in denying the motions for judgment of acquittal 'with regard to the defect in the first count of the indictment in that the said indictment failed to charge an essential element of the offense of housebreaking, namely, that the breaking was in the daytime'. The question is whether the first count of the indictment sufficiently stated an offense so as to permit the sustaining of the conviction under it. ¹

Under the common law, the felony of burglary was the breaking and entering of a dwelling house of another by night with the intent to commit a felony. Clark and Marshall, Law of Crimes (6th Ed.) § 13.00, p. 870. It is a felony in Maryland, Maryland Declaration of Rights, Art. 5, and although the penalty for its commission is fixed by statute, the crime of burglary is not defined therein, Md.Code, (1967 Repl. Vol.) Art. 27, § 29. See McGraw v. State, 234 Md. 273, 275, 199 A.2d 229; Hannah v. State, 3 Md.App. 325, 239 A.2d 124. So if the breaking and entering of the dwelling house at night is with the intent to steal personal goods of another under the value of $100 the offense is not common law burglary, for the larceny of goods under the value of $100 is designated a misdemeanor by Code, Art. 27, § 341. But by legislative enactment the felony of burglary includes the breaking and entering of 'any dwelling house in the nighttime with the intent to steal, take or carry away the personal goods of another of any value therefrom,' Code, Art. 27, § 30(a), and the maximum penalty of 20 years established by § 29 is for both the statutory burglary and common law burglary. In Maryland neither common law burglary nor statutory burglary encompasses the breaking of a dwelling house in the daytime. This gap was filled by legislative enactment. By Code, Art. 27, § 30(b) there is proscribed the felony 'of breaking a dwelling house in the daytime with intent to commit murder or felony therein, or with intent to steal, take or carry away the personal goods of another of any value therefrom' and a maximum penalty of 10 years therefore is authorized. ² Thus although not designated as burglary, the offense proscribed by § 30(b) includes the essential elements of both burglary and statutory burglary with two exceptions: (1) the breaking need not be in the nighttime, ³ and (2) merely a breaking is required rather than a breaking and entering. And while a person convicted of common law and statutory burglary must restore the thing taken to the owner thereof or pay him the full value thereof under the '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.' Putnam v. State, 234 Md. 537, 541, 200 A.2d 59, 61.

                provisions of § 29, no such requirement is provided by § 30(b) upon the conviction of daytime housebreaking.  It is clear, therefore that in Maryland there are three separate felonies under which the breaking of a dwelling house is proscribed-common law burglary, statutory burglary and daytime housebreaking.  Under the provisions of Code, Art. 27, § 31 in any indictment for the crime of burglary it is sufficient to use a formula substantially to the effect: '(t)hat A-B on the _  _ day of _   _, 19_ _, in the County (City) aforesaid feloniously committed burglary of the dwelling of C-D; * * *.'  This formula is sufficient to charge both common law burglary and the statutory burglary under § 30(a) but no formula is provided by statute for daytime housebreaking under § 30(b)
                

In our view the indictment in the instant case does charge an offense, as it alleges all the elements of the crime proscribed by § 30(a)-the breaking of a dwelling house with intent to steal. We think that the time of the offense, 'in the daytime', is not an essential element of the crime, and is not used in the statute to define or characterize the offense, but merely to distinguish it from burglary which must be committed in the nighttime. We find support in our view in the rationale of St. Clair v. State, 1 Md.App. 605, 232 A.2d 565 and Gazaille v. State, 2 Md.App. 462, 235 A.2d 306 where we held that lack of sufficient proof that the breaking occurred in the daytime as opposed to the nighttime did not require reversal of a judgment upon conviction of a charge of daytime housebreaking as we felt that when the proof fails to show the time of the offense, then the accused may be punished under the statute providing the lesser penalty. 1 Md.App.

622, 232 A.2d 565. As it is not necessary to prove that the offense occurred in the daytime, it is not necessary to allege that fact. And the omission of an allegation that it did so occur is neither a matter of substance, precluding its addition by amendment, Md. Rules, 714 a; Corbin v. State, 237 Md. 486, 206 A.2d 809; Watkins v. State, 4 Md .App. 47, 240 A.2d 787, nor an essential element or fact 'constituting the specific offense,' Md. Rules, 712 a.

The appellant cites no authorities which support his contention. We find further support for our view in cases in other jurisdictions. ⁴ In State v. Baker, 92 Utah 567, 70 P.2d 733, 734 (1937) the court said:

'Certainly, the weight of authority-practically all the authority-is to the effect that an indictment for burglary in the daytime is good without expressly alleging that it was in the daytime.'

In State v. Eubanks, 77 Idaho 439, 443, 294 P.2d 273 (1956) it was held that the state was required to allege and prove the time of day for conviction of nighttime burglary and that a charge which does not allege the time of day charges only daytime burglary. In State v. Newell, 93 Vt. 81, 106 A. 561 (1919) it was held that it was not necessary to include 'daytime' in an indictment for a lesser burglary offense, although it was necessary to include 'nighttime' in an indictment for the greater offense. State v. Neddo, 92 Me. 71, 42 A. 253 (1898) and Carr v. Lanagan, 50 F.Supp. 41 (Dist.Ct.Mass.1943) are to like effect. Compare In re Rhyndress, 317 Mich. 21, 26 N.W.2d 581 (1947).

Of course, an indictment must be sufficiently definite so as to inform the accused of the charge against him, to enable him to prepare his defense and to protect him against subsequent prosecutions for the same offense. Lynch v. State, 2 Md.App. 546, 562, 236 A.2d 45. The indictment here fulfilled these requirements. Under its charge the only offense of which the appellant could have The appellant filed a motion to suppress and exclude evidence as seized by an 'unlawful and illegal search'. The motion was denied at a hearing before the trial on the merits. Objections at the trial to the admission of the evidence seized were overruled and a motion at the conclusion of the testimony to exclude

                been properly convicted was daytime housebreaking.  A conviction of burglary cannot be sustained without proof that the offense occurred in the nighttime, Bright v. State, 4 Md.App. 154, 241 A.2d 724, and the charge must so allege.  5  Further the indictment here alleged only a 'breaking' in accordance with the provisions of Code, Art. 27, § 30(b), and not an 'entering' which is an essential element of both common law and statutory burglary, Art. 27, § 30(a).  We find nothing to indicate that the appellant was misled as to the charge against him or that he was actually prejudiced by the form of the indictment.  We have found that the indictment did not 'completely fail to state an offense.'  But even though it alleged 'all the elements of the offense intended to be charged' and apprised the appellant 'of the nature and cause of the accusation against him', if the appellant thought it was defective in its allegations or 'so inartificially drawn that it would have been open to attack in the trial court,' he could have challenged its sufficiency by an appropriate motion under Maryland Rule, 725 b, or if he had wished further details of the charge he could have demanded a bill of particulars under Rule 715 a or moved for discovery and inspection under Rule 728.  See Putnam v. State, supra, 234 Md. 545-546, 200 A.2d 59.  He did none of these things but

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