Appeal from the Criminal Court of Baltimore; Prendergast, J.
Brune, C. J., and Henderson, Prescott, Horney and Marbury, JJ. Marbury, J., delivered the opinion of the Court.
Argument was first heard in this case on the State's motion to dismiss the appeal for failure of the appellant to strictly comply with Maryland Rule 828 b (requiring that the printed extract set forth the particular portions of the record necessary for the determination of the questions presented on appeal). We reserved decision on the motion and heard argument on the merits. While we do not condone the failure of the appellant to comply strictly with the rules, we think that a dismissal of the appeal would not be appropriate. In this indigent appeal, the missing material has been supplied by the State, and the omissions were not deliberate. Brown v. Fraley, 222 Md. 480, 483, 161 A.2d 128. Whether to dismiss the appeal or not is discretionary with this Court, and under the circumstances of this case, we do not think it advisable to do so. Accordingly, the motion to dismiss is denied.
William Bergen was charged under indictment No. 3560 with violating Code (1957), Article 27, Section 580 (Trespass in order to look into windows, etc.). He was also charged under indictment No. 3561 with violating Code (1957), Article 27, Section 490 (Persons deemed rogues and vagabonds). Tried before Judge Prendergast, sitting without a jury, appellant was convicted of both charges and sentenced to thirty days in the Maryland House of Correction for violating the trespass statute, and to two years in that institution for having been determined a rogue and vagabond, the sentences to run concurrently. On this appeal he claims that the evidence was insufficient to support either verdict, that the two verdicts are inconsistent, and that he was denied a constitutional right to cross-examine the prosecuting witness at his preliminary hearing.
The primary contention of the appellant is that the material elements of Section 490 were not proved. Four alternative elements or situations are set forth in the statute. Admittedly not applicable are the first two, which require that at the time one
is apprehended he possess tools or implements from which a felonious intent could be inferred, or had "offensive weapons" under similar suspicious circumstances from which a felonious intent likewise could be inferred. The statute as applicable here reads in pertinent part:
"If any person * * * shall be found in or upon any dwelling house, warehouse, storehouse, stable or outhouse, or in any enclosed yard or garden or area belonging to any house, with an intent to steal any goods or chattels, every such person shall be deemed a rogue and vagabond * * *."
About 9:25 p.m. on August 1, 1963 two officers of the Baltimore police force were patrolling in an unmarked car in an alley which runs behind and parallel to the north side of the 3700 block of Liberty Heights Avenue. As they reached the northwest corner of the house numbered 3710, and at a point in the alley on a line with the west side of that house, they saw a man standing on a large rock directly beneath one of three windows, peering into what proved to be the dining room. The house, a home for the aged, was dark throughout the first floor though there were lights on the second floor. Quite by coincidence, Mrs. Maxine Dunnmon, who operated the home, entered the unlighted dining room and saw what appeared to her to be the head of a person silhouetted by lights from her neighbor's property, at almost the same instant the figure was observed by the policemen. Realizing that he had been discovered, the man ran toward Liberty Heights Avenue with the police in pursuit on foot. After a chase of a block or more, the police apprehended the man who proved to be the appellant Bergen. Their search of him and the area around the window in an attempt to find burglary tools was fruitless, but Mrs. Dunnmon testified at the trial that she had noticed that the window, which was normally kept closed and locked, was raised about six inches.
Specifically, the appellant contends there was no testimony to support the conclusion that he was "in or upon" the house and that the yard in which he had been standing was not "enclosed", and therefore he can not be guilty as a rogue and vagabond
under Section 490. The State, on the other hand, contends that both elements were satisfied. It suggests that since the portions of the statute being considered are exactly as they were when the law was enacted we should give to the term "dwelling house" the broad meaning it had at common law, especially when applied to common law burglary, to which this statute is closely allied. At common law it appears that the term dwelling house embraced all that was within the curtilage, including the surrounding land. See Annotation "Burglary: outbuildings or the like as part of 'dwelling house'" 43 A.L.R. 2d 831. See also Clark and Marshall, Crimes (5th ed.) Section 406; Hochheimer, Criminal Law, (2d ed.) Section 276; Perkins, Criminal Law (1957), Chapter 3, pp. 160-162. Therefore, argues the State, Bergen was upon the house because he was within Mrs. Dunnmon's curtilage and upon her land, and physical contact with the house was thus not required. However, the State also contends, with much force we think, there is a compelling inference that the appellant was leaning against the house (and thus upon it) when he stood on the rock peering into the dining room, and clearly so if the lower court believed that he opened the window. (Cf. Goodwin v. Lumbermens Mut. Cas. Co., 199 Md. 121, 85 A.2d 759, and cases there cited for the meaning of "upon an automobile" for purposes of insurance coverage.)
We consider it unnecessary to rest our affirmance of the rogue and vagabond conviction upon that theory, however, for we think that the evidence is sufficient to support the conclusion that Bergen was in an enclosed yard or area. The appellant lays great stress on the word "enclosed" and contends for a construction of the statute that would necessitate completely surrounding barriers. We think that this requirement would be too stringent. The meaning the word "enclosed" might have under one situation is not necessarily the connotation it might have when used in a different context. For example, Wannmacher v. Baldauf Corp., 57 N. W. 2d 745 (Wis.), cited by appellant, does not involve land, but deals with a statute ...