Wersten v. State, 317
| Decision Date | 28 June 1963 |
| Docket Number | No. 317,317 |
| Citation | 192 A.2d 286,232 Md. 164 |
| Parties | Donald J. WERSTEN v. STATE of Maryland. |
| Court | Maryland Court of Appeals |
J. William Schneider, Jr., Baltimore, for appellant.
Thomas B. Finan, Atty. Gen., Robert F. Sweeney, Asst. Atty. Gen., William J. O'Donnell, State's Atty., and Charles E. Moylan, Jr., Asst. State's Atty., Baltimore, for appellee.
Before BRUNE, C. J., and HENDERSON, HAMMOND, HORNEY and SYBERT, JJ.
The appellant was tried in the Criminal Court of Baltimore before the court, sitting without a jury, on an indictment containing six counts, and was found guilty under the first, second and sixth counts thereof. These three counts were based, respectively, upon the following sections of Article 27 of the Code: the first upon § 32, breaking and entering a storehouse with intent to steal property worth $100.00 or more; the second upon § 342, breaking and entering a storehouse with intent to steal property worth less than $100.00; and the sixth upon § 33, breaking and entering a storeroom and stealing property worth $5.00 or more. The appellant was sentenced to eight years' imprisonment and appeals from the judgment.
On this appeal the appellant makes two contentions: first, that the verdicts on the first and second counts are inconsistent and therefore cannot stand; second, that the evidence as to the value of the property stolen was insufficient to support the finding of guilt under the sixth count.
The appellant's first contention is sound. Sections 32 and 342 of Art. 27 are complementary and mutually exclusive, as they were prior to 1952 and as they have been since the amendment of 1960 of § 32 brought the $100.00 line of demarcation under that section into accord with the $100.00 limit of § 342, which had been established in 1952. Johnson v. State, 223 Md. 479, 481, 164 A.2d 917. A breaking and entering may be with intent to steal property worth $100 or more or with intent to steal property worth less than $100.00, but not with both of these intents. Since these findings were made by the judge and not by a jury it is practicable to remand the case without affirmance or reversal as to these counts and with instructions to the court to reconsider these findings and to enter findings as to these two counts which shall be consistent with each other. See Fletcher v. State, 231 Md. 190, 189 A.2d 641.
With regard to the sixth count we find the appellant's contention without any substance. There was testimony by the manager of the club which was broken into and from which a safe and its contents were...
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