Smith v. State

• Citation: 66 A. 678,106 Md. 39
• Parties: SMITH et al. v. STATE. MATTHEWS et al. v. SAME.
• Decision Date: 24 April 1907
• Court: Court of Appeals of Maryland

66 A. 678

106 Md. 39

SMITH et al. v. STATE.

MATTHEWS et al. v. SAME.

Court of Appeals of Maryland

April 24, 1907

Appeal from Circuit Court, Wicomico County; Chas. F. Holland, Judge.

Frank Smith and others were indicted for burglary with explosives and appeal. Affirmed.

Argued before BRISCOE, BOYD, PEARCE, SCHMUCKER, BURKE, and ROGERS JJ.

Ellegood Freeny & Wailes, for appellants Smith and Taylor.

Elmer H. Walton, for appellants Matthews and Hawkins.

Attorney General Bryan, for the State.

BRISCOE J.

The appellants in this case were indicted, with one John Avery on the 25th day of September, 1906, in the circuit court for Wicomico county, for a violation of Acts 1906, p. 946, c 476. This act provides "that any person who breaks and enters, either by day or night, any building, whether inhabited or not, and opens or attempts to open any vault, safe, or other secure place, by use of nitroglycerin, dynamite, gunpowder, or any other explosive, shall be deemed guilty of burglary with explosives. And any person duly convicted of burglary with explosives shall be sentenced to the penitentiary in the discretion of the court for a period of not more than 20 years." The indictment consisted of two counts. A demurrer was interposed to each count, and was overruled by the court below. The appellants then moved to sever, and this was also overruled. A motion was then made to quash each count of the indictment, and was overruled as to the first count, but granted as to the second, and the second count was quashed. The first count, upon which the appellants were tried, charged that on the 17th day of May, in the year 1906, in the nighttime of the same day, at Wicomico county, a certain building, to wit, the depot in the town of Salisbury of the Baltimore, Chesapeake & Atlantic Railway Company, a body corporate of the state of Maryland, feloniously and burglariously did break and enter, and did attempt to open and did open a certain vault, safe, and other secure place in the depot by the use of nitroglycerin, dynamite, gunpowder and other explosives, with intent certain moneys, goods, and chattels in the vault, safe, and other secure place in the depot, then and there being, then and there feloniously to steal, take, and carry away, etc. According to the record, John Avery, upon arraignment, pleaded guilty, and the four appellants pleaded not guilty. Upon trial, they were convicted upon the first count of the indictment, and each sentenced to be confined in the penitentiary for 15 years. And this appeal is from the judgment so rendered against the appellants.

It will be unnecessary for us to consider the second count of the indictment, as this count was quashed, and the appellants were tried on the first count. As to the motions to sever we need only say that the granting or refusing such motions is entirely within the discretion of the trial court, under all the circumstances of the case. Arch. Crim. Prac. & Pleading 304; 1 Chitty Crim. Law, 268; United States v. Marchant, 12 Wheat. (U. S.) 479, 6 L.Ed. 700; St. Clair v. United States, 154 U.S. 134, 14 S.Ct. 1002, 38 L.Ed. 936. It is, however, contended upon the part of the appellants that the court below committed an error in overruling...