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Dailey v. State

Decided: April 8, 1964.

DAILEY
v.
STATE



Appeal from the Criminal Court of Baltimore; Sodaro, J.

Brune, C. J., and Henderson, Prescott, Horney and Sybert, JJ., and reargued before the full Court. Henderson, J., delivered the opinion of the Court. Brune, C. J., concurring in part and dissenting in part.

Henderson

The appellant was convicted, in a non-jury case, under eleven indictments charging separate statutory burglaries and attempted burglaries. The court sentenced him to ten years on indictment 1336, and to two years on each of the other indictments to run concurrently with the initial sentence. This appeal is from each of those judgments.

The facts are virtually undisputed. On March 23, 1963, at about 11 P.M. a burglar alarm installed in the premises of the American Express Company at 213 North Charles Street was set off. A special officer of the company that installed the alarm, together with officers of the Baltimore police force, went immediately to the premises and entered the front door. The special officer testified: "We heard * * * glass shatter and we figured we had someone trapped in the rear of the premises where their safe is." However, the intruder got away. The police found a window broken in the rear. One of the bars across the window had been sawed through. On a desk counter near the safe they found a crow bar. Outside the window in an areaway, they found a man's coat in the pocket of which was a case containing two keys. They also found a kit of tools including a hacksaw, vise grippers, a mall with taped handles and a candle. Nothing appeared to have been taken from the premises, undoubtedly because of the interruption.

The police concluded that the owner of the keys resided in a rooming house in the vicinity. Sergeant McKew testified as to his reasons for drawing the inference. He said there had been reports of a series of some twenty-five burglaries or attempted burglaries in the neighborhood comprising an area of some eight square blocks, in which the method of operation had been the same. The keys were obviously not automobile keys, and one of them was stamped with the number 5. He reasoned that this key afforded entrance to a room, and the larger key to an outer door. This suggested a rooming house of which there were twelve in the area. On motion, the court struck out this testimony. However, it was shown that the police proceeded diligently to try the large key in the outer doors of the various rooming houses and at about 12:30 A.M. found that it fitted the door of 115 W. Mulberry Street, about two or three blocks from the scene of the crime. They went to room 5 and knocked but received no answer. They tried the key numbered 5 and it opened the door.

The appellant was in bed, apparently asleep. One of the police took a loaded pistol that was lying on a bedside table. Sergeant McKew "instructed the subject to get out of bed." The appellant said: "How did you find me so fast?" He admitted he left his coat "up there" but "there was no identification."

While he was getting dressed, Sergeant McKew asked "if we could search his room." He said: "you have me, you just as well do it * * * take anything you want * * * do me a favor, take everything in here into the station house and I will know where it is." The police took him and his goods to the station house, although they had no arrest warrant or search warrant. Some of the articles were subsequently identified as having been taken in previous burglaries.

At the station house at about 1:15 A.M. the appellant was questioned. He said he had recently been released from prison in Ohio, and had set up an operation in that State. When things "got hot" he moved to Baltimore. He readily admitted that he had made some fifteen entries in the neighborhood of his rooming house. He admitted having entered the premises of the American Express Company and dropping his coat and tools in his haste to leave when he heard a noise at the front door. He gave a full oral statement which was reduced to writing but not signed by him. This statement was offered in evidence without objection as to form and "not on the ground it was not voluntarily given." The sole objection was on the ground that it was the "fruit" of an illegal arrest. In it the appellant described his method of operation in detail. His objective in each case was the safe in a shop or store. In most cases he took only cash, although in the case covered by indictment No. 1336 he also took a desk ornament of no particular value. However, some of the articles taken from his room were put in evidence over objection under indictments 1336, 1341 and 1348. Under the other indictments no tangible evidence was introduced, although there was either proof of the corpus delicti or a stipulation as to the facts in each case. The appellant did not take the stand.

The appellant refers in his brief to an "attempted burglary" at 213 North Charles Street. This would be a misdemeanor. Tillett v. Warden, 215 Md. 596, 597. It seems clear, however, that the crime committed at that location was more than attempt. The fact that nothing was taken is not controlling, Ridley v. State, 228 Md. 281, 282. Cf. Wallace v. State, 231 Md. 517, 519, and McNeil v. State, 227 Md. 298, 300. The inference that he intended to take the contents of the safe seems inescapable.

Breaking and entering a storehouse is not a common law offense, but is covered by three statutory provisions, Code (1957 ed. and 1963 Supp.), Art. 27, secs. 32, 33 and 342. Wersten v. State, 232 Md. 164, 165. Sec. 33 is inapplicable here, since there was no stealing. Sec. 342 expressly makes it a misdemeanor to break and enter a storehouse with intent to steal property worth less than $100.00. The maximum penalty is eighteen months. Sec. 32 fixes a maximum penalty of ten years in the penitentiary for breaking and entering a storehouse with intent to steal property worth $100.00 or more. It is ...


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