Appeal from the Circuit Court for Carroll County; Boylan, C. J.
Brune, C. J., and Henderson, Prescott, Horney and Marbury, JJ. Prescott, J., delivered the opinion of the Court.
The appellants, John Charles Hardison, Charles Fountain Grant and Carson Hardison, together with a fourth defendant, Robert William Blymire, were indicted by the grand jury for Carroll County in an indictment which charged grand larceny in the first count, and breaking and entry in the second count. On August 18, 1960, the appellants moved for a severance, which was granted. Upon arraignment Blymire pleaded guilty. The appellants pleaded not guilty and elected to be tried by a jury, which was duly impaneled. On the same day the jury returned their general verdict of guilty as to each of the appellants. On August 19, Blymire was sentenced to five years in the Maryland Penitentiary, but the sentence was
suspended on condition that he be of good behavior and that he be placed under the parole department of the State of Florida. On August 22, all three appellants were sentenced to five years in the Maryland Penitentiary and have brought this appeal.
On or about February 6, 1960, a store known as Dutterer's of Manchester was broken into and $2,500 was taken from the safe, which had been pried open. Dutterer's of Manchester is a supermarket, located in Greenmount, in Carroll County, Maryland.
Blymire testified for the State against the appellants. He stated that the appellants and he had recently come from Florida, traveling in an automobile that either belonged to Grant or his brother. They went to Blymire's sister's home in Glen Rock, Pennsylvania. They left his sister's home about 9:00 or 10:00 p.m. and started back to North Carolina. When they "got outside of Manchester there, near where Dutterer's Store [was] located," he was told to turn in a side road and stop. He did so, and the other three "went around to the trunk." He drove the car down this side road for about a half a mile and turned around, and, when he returned to the spot where the other three had left the car, they were walking down to meet him. Two of them were carrying boxes and the other had a screw driver and a hammer. One of them told him they had "hit a jackpot," and another "said something about tearing up a tin can [a frail safe]." They wanted some place to hide until daylight, so they went back to his sister's home, arriving there about midnight, where they divided the money.
Gloria Anderson, a sister of Blymire, testified that her brother and one of the appellants had come into her home at about 9:00 p.m. on February 5th. After a short stay, they left and returned sometime after midnight accompanied by the other two appellants. The men brought with them a large metal box that contained money. Two of them had revolvers. The money was spread upon the table and divided into four piles. They would not tell her where they had obtained it. After the money was divided, they left. This testimony of
Gloria Anderson was confirmed by her husband, although he was not certain of the date.
The appellants present the following contentions:
1. That the judgment and sentence imposed upon them was invalid because (a) the offense for which they were convicted was no offense within the meaning of Code (1957), Article 27, § 32,*fn1 upon which the second count of the indictment was drawn, in that they were charged with breaking and entering a "storeroom" rather than a "storehouse"; and (b) because they could not be convicted under the first count of the indictment which they claim was dependent upon the validity of the second count, and further because the first count charged the defendants with having "feloniously" stolen, taken and carried away $2,500, rather than having stolen the money with the felonious intent to convert it to the appellants' own use.
2. That the trial court erred in failing to instruct the jury as to the definition of an accomplice, and as to the law with respect to the ...