Wiley v. State

• Decision Date: 02 March 1965
• Docket Number: No. 173,173
• Citation: 237 Md. 560,207 A.2d 478
• Parties: Walter Jerome WILEY v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 560

237 Md. 560

207 A.2d 478

Walter Jerome WILEY v. STATE of Maryland.

No. 173.

Court of Appeals of Maryland.

March 2, 1965.

Harvey N. Zimmerman, Baltimore, for appellant.

Carville M. Downes, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Charles E. Moylan, Jr. and Stanley A. Cohen, State's Atty. and Asst. State's Atty., respectively, for Baltimore City, on the brief), Baltimore, for appellee.

Before PRESCOTT, C. J., and HAMMOND, HORNEY, MARBURY and OPPENHEIMER, JJ.

HAMMOND, Judge.

The appellant Wiley seeks to reverse his convictions on charges of attempting to break into a real estate office with intent to steal goods and monies therein, and of being a rogue and vagabond, on the grounds that the trial judge erred in his charge to the jury, (a) in not instructing that if Wiley '* * * had attempted to break and enter the premises but prior to his entry voluntarily abandoned his effort * * *' their verdict must be for Wiley, (b) in instructing the jury that if Wiley had done an overt act in furtherance of his intended effort to break into the office he had committed the crime of attempt charged, even though thereafter he had voluntarily abandoned his attempt and left the premises before he succeeded in the breaking, and (c) in instructing '* * * that a man can be guilty of a rogue and vagabond offense if he merely walks up to a door with a crowbar in his hand and if you can find from that he intendent to break in * * *' (the ground of objection to the last instruction is that it omits the requirement the appellant thinks necessary, that there must be a concurrently existing felonious intent).

A police officer testified that he surprised Wiley and another man (who turned out to be Wiley's brother) in a vestibule at twelve-twenty a. m. on a Saturday, tampering with the door of a real estate office on Pennsylvania Avenue in Baltimore. Wiley had wedged a large pinch bar between the door and the jamb, aimed at the lock, and was trying to pry the door open by pushing on the bar and using the weight of his body. His brother was trying to help with a screw driver.

The owner of the real estate office said that when he closed the place at noon on Friday the door was in normal working order and unmarred, and when he arrived on Saturday morning, in response to a call from the police, he could not open the door, the jamb looked like it had been 'scraped with some instrument' and the door lock, even after a locksmith had worked on it, was still bent.

Wiley's version of the incident was that he intended to break in the office and had started to break in and that '* * * I had only hit the door with it [the pinch bar] twice * * * and * * * I just got scared and I abandoned the idea of breaking in the place.' He said the screw driver and pinch bar were his and he had laid them on the door sill and walked down the street, when a few seconds later, three doors away, the officer arrested him.

In addition to the standard instructions as to the presumption of innocence and the burden of the State to prove guilt beyond a reasonable doubt, Judge Grady charged the jury that they were the judges of both the law of the case and the facts of the case and, consequently, what he said to them about the law was no more than the court's interpretation of what the applicable law is. He told the jury: 'You are at liberty to disagree with the Court's interpretation of the law and you shall determine what the law is yourselves and then apply the law as you find it to the facts as you find them and render your verdict accordingly.'

As to the charge of attempt, Judge Grady said to the jury:

'In this case I advise you that this man, you may find from all the evidence, had some idea, something in his mind, and that you may find from the evidence that he actually began to put this intention into execution, but that he was stopped, according to the State's evidence, or according to his own evidence he stopped voluntarily. I advise you that if you believe this man had in his mind the idea of breaking and entering these premises and pursuant to that idea then did a physical act by inserting an instrument into the door and prying on the door, then I advise you at that moment an attempt to enter has been completed and whether he then discontinued the attempt or whether he was interrupted in the attempt is of very little importance, because the crime had already been committed, namely, an effort combined with a plan to go into these premises.'

Wiley's complaint, that the judge erroneously and to his prejudice did not instruct the jury that they should find him innocent if they found that after an initial attempt to...