Appeal from the Criminal Court of Baltimore; Sodaro, J.
Brune, C. J., and Hammond, Prescott, Marbury and Sybert, JJ. Marbury, J., delivered the opinion of the Court.
The appellant was tried and convicted of burglary in 1961. On appeal from that conviction we reversed, Yopps v. State, 228 Md. 204, 178 A.2d 879, for the sole reason that defense counsel was not given an opportunity to argue before the verdict was announced. A new trial was held before Judge Sodaro
and a jury on February 20, 1963 and the defendant-appellant was again convicted of breaking a dwelling house with intent to steal, in violation of Code (1957), Article 27, Section 32, and sentenced to ten years in the Maryland Penitentiary.
At approximately 4:45 p. m., on Sunday, February 12, 1961 Mr. John O'Grady and his family departed from their securely locked home at 2237 Lake Avenue in Baltimore City to visit Mrs. O'Grady's parents. When the O'Gradys returned about 7:00 p.m. that evening it was noticed that the front door had been forced, and upon entering, the O'Gradys found that the house had been ransacked. Household items, including silverware, candlesticks, a camera and numerous items of jewelry, of a total value of about $1200 were missing. Mr. O'Grady also found that the back door of the house was unlocked, and he discovered fresh footprints in the snow in the backyard leading from the house to an alley beyond. Mr. O'Grady's testimony also adduced that all of the missing items could have been carried by one man, and that he had a sign reading "John F. O'Grady, Attorney-at-Law" affixed to the right of the front door of his house.
The State produced as a witness Mrs. Thelma Frisbie, who lived across the street from the O'Gradys. She testified that at approximately 5:30 p.m. on the afternoon in question the appellant came to her door and asked her if she knew where a "Mr. Pizza" lived on Lake Avenue. Having lived there for some thirty-five years, Mrs. Frisbie advised Yopps that there was nobody by the name of Pizza living on that street. Mrs. Frisbie testified further that because the appellant had acted very nervously and excitedly she continued to observe him. She saw him go to the house next door and to the home of Dr. Rider across the street and one house removed from the O'Grady house. She also observed Yopps standing at the front door of the O'Grady house for two or three minutes with the storm door open. She saw him walking around the block at a hurried pace and then driving down the street in a car which she had previously noticed parked on Lake Avenue some distance away. Yopps stopped the car in front of her house, he and another man got out, crossed the street and they both went up the front steps of the O'Grady house.
The next door neighbor of the O'Gradys, a Mrs. Bessie Faraclas, testified that between 5:15 and 5:40 p.m. on February 12 she left her house by the front door, and just as she stepped onto her porch she saw the appellant standing at the front door of the O'Gradys. At that moment he tipped his hat and she heard him say, "Good-bye Mrs. O'Grady." She further testified that Yopps went down the sidewalk toward a car, putting his hands in his pockets as if searching for a key.
Dr. Rider was called to testify for the State, and he corroborated the observation of Mrs. Frisbie by stating that while he was eating supper appellant rang his doorbell and speaking "in an excited manner," inquired as to the whereabouts of a Mr. Pizza. He testified that the appellant's demeanor aroused his curiosity, that after he and his wife had finished their meal he looked outside and observed Yopps walking down the steps and sidewalk from the O'Grady house fumbling in his pockets, that he arrived at an automobile, touched the handle, but continued to reach in his pocket, and then turned away and went down the street and around the corner.
The last of Mr. O'Grady's neighbors to testify was a Dr. Joseph, who lived two doors from the O'Gradys on the same side of the street. He stated that while it was still light, some time between 5:15 and 5:30 p.m., he was in front of his house cleaning snow off his car when appellant and another man drove up in a car, parked it on the opposite side of the street, got out and crossed the street and, so he observed, entered the O'Grady house. A little later he saw the two men come out of the alley and cross Lake Avenue to the car which was parked just below Mrs. Frisbie's house.
The arresting officer testified that although Yopps admitted being in the block inquiring about Mr. Pizza, he denied being on the side of the street where the O'Grady house is located. When advised by the officer that the police had information contrary to his disavowal, Yopps refused to say anything more. The police officer further testified that all of the neighbors later identified Yopps at a police lineup, and this was corroborated by their own testimony.
On his behalf, the appellant took the stand and admitted his presence on Lake Avenue, but he ...