Appeal from the Circuit Court for Baltimore County; Berry, J.
Brune, C. J., and Henderson, Hammond, Prescott and Marbury, JJ. Brune, C. J., delivered the opinion of the Court.
The appellant was tried before a judge, sitting without a jury, in the Circuit Court for Baltimore County under an information charging him with attempted "housebreaking" of an "outhouse," was found guilty, and was sentenced to five years' imprisonment. He appeals.
The appellant raises three contentions (though not in this order): (a) that the information fails to state a criminal offense; (b) that even if it did, the evidence is insufficient to sustain the conviction; and (c) that even if the first two contentions were to be rejected, the sentence exceeds the permissible limit.
The information charges that the appellant "unlawfully did attempt to commit an offense prohibited by law, to wit: did attempt to commit housebreaking of the outhouse, to wit: the store of Joseph Kleiman, that being an offense prohibited by law, and in such attempt did * * * certain overt acts toward the commission of said offense, to wit: did attempt to enter said outhouse by * * * attempting to pry open a door" thereof, but "did fail in the perpetration of said offense and was intercepted and prevented in the execution of the same." There was evidence to the effect that the appellant and a companion tried to break into a drugstore at about two o'clock one morning, but were interrupted in this effort by the police, that they both fled, and that the appellant was caught after a chase.
In the trial court the appellant (then represented by counsel other than his counsel on appeal) made no objection at all to the sufficiency or to the form of the information. The preliminary question at once arises whether, in these circumstances, it may be raised on appeal. We shall assume, without deciding, that it is open here.*fn1
The next question then is whether or not the information sufficiently states an offense to sustain the conviction. The rule which seems to be generally recognized draws a line of demarcation between an indictment or information which completely fails to state an offense and one which alleges all the elements of the offense intended to be charged and apprises the accused of the nature and cause of the accusation against him, even though it is defective in its allegations or is so inartificially drawn that it would have been open to attack in the trial court. 27 Am. Jur., Indictments and Informations, § 189, p. 735. In § 191 of the same work, p. 736, it is stated that "a verdict will not cure a failure to allege a criminal offense or the omission of any essential allegation; any such objection is fatal after as well as before verdict." See also: Wharton on Criminal Law and Procedure (Anderson Ed.), §§ 1881, 1883, 1885; 42 C.J.S., Indictment and Information, § 319, pp. 1348-51; People v. Green, 368 Ill. 242, 13 N. E. 2d 278, 115 A.L.R. 348; State v. Watson, 356 Mo. 590, 202 S. W. 2d 784; State v. Zaras, 81 Ohio App. 152, 78 N. E. 2d 74 (where the defendant had pleaded guilty); State v. Ryea, 97 Vt. 219, 122 A. 422; State v. Gosselin, 110 Vt. 361, 6 A.2d 14; Whitted v. State, 188 Ark. 11, 63 S. W. 2d 283; Houston v. State, 203 Ind. 409, 180 N. E. 582; State v. McDonald, 178 La. 612, 152 So. 308; State v. Hall, 54 Wash. 142, 102 P. 888; State v. O'Brien, 93 Conn. 643, 107 A. 520; State v. Miller, 24 Conn. Sup. 247, 190 A.2d 55. See, on the other hand, Laque v. State, 207 Md. 242, 113 A.2d 893, cert. den. 350 U.S. 863; and Kares v. State, 215 Md. 396, 137 A.2d 712, in which the warrant or indictment was or may have been defective, but did not fail to state any offense. In Johnson v. State, 223 Md. 479, 164 A.2d 917, referred to by the appellee, the indictment was held sufficient. In Kellum v. State, also referred to by the appellee, 223 Md. 80, 162 A.2d 473, no question was raised as to the sufficiency of the indictment, but this Court noted that
no point was made of the case having been treated as one for simple assault, without any regard to the fact that the actual indictment charged assault with a specific intent, and observed that any attack on the indictment appeared to have been waived. (Footnote 1, 223 Md. at pp. 82-83.)
The appellant contends that "housebreaking," as such, is a crime not recognized at common law and that the information, in order to comply with the provision of Art. 21 of the Maryland Declaration of Rights that "in all criminal prosecutions, every man hath a right to be informed of the accusation against him," must state some statutory offense in the terms required by the laws of this State. We need not pass upon the correctness of the appellant's assertion (for which he cites no authority) that housebreaking as such is not an offense recognized at common law, nor shall we discuss it at any length. The term "housebreaking" does have a legal significance, which, without any further specification, relates to a dwelling. Radin's Law Dictionary defines it as "[t]he crime of forcible entry into a dwelling place with the intention to commit a felony. If done at night it constitutes the offense of burglary." Black's Law Dictionary (4th Ed.) contains an almost identical definition, and similar definitions may be found in such general dictionaries as the New Century and Webster's New International. See also 3 Stephen's History of the Criminal Law of England (1883), p. 150, where in commenting on the English Larceny Act of 1861, the author states that burglary was a common law crime and goes on to say: "The cognate offense of housebreaking has been made the subject of a surprising number of minute distinctions, the nature and history of which are not worth the trouble of relating or stating."
Housebreaking is an offense long known under the law of Maryland. Without defining the terms, sec. 2 of ch. 26 of the Acts of 1715 excepted cases of robbery, burglary and housebreaking from the jurisdiction of justices of the county courts. Sec. 3 of ch. 4 of the Acts of 1729 recited that doubts had arisen as to whether felons who had "broke and entered several shops, storehouses or warehouses, not contiguous to or used with any ...