Appeal from the Circuit Court of Baltimore (SODARO, J.).
The cause was argued before Brune, C.J., and Hammond, Prescott and Horney, JJ. and Rutledge, J., Associate Judge of the Fourth Judicial Circuit, specially assigned.
HORNEY, J., delivered the opinion of the Court. BRUNE, C.J., dissents.
The questions presented on this appeal relate to the admissibility of evidence seized during the course of a search and to the sufficiency of the evidence to support the convictions of being a rogue and vagabond, of attempting to break and enter a storehouse with intent to steal, and or receiving stolen property.
On October 28, 1963, a confectionery store on Woodbrook Avenue in Baltimore City was burglarized. A rear door was forced open and an electric hand saw and other property valued at more than $600 were stolen.
Shortly after midnight (about 12:30 a.m.) three days later, a police officer, in the course of "trying up" his post in the area of the burglarized store, apprehended the defendant (Milton McCray, Jr.) coming out of the rear yard of the store. The yard was enclosed by a high concrete wall, the entrance to
which was through a door that was customarily kept locked. Upon seeing the defendant in the doorway, the arresting officer also entered the yard with him and observed that an attempt had been made to break into the store again through its rear door. Lying in the yard outside the back door (in which a glass panel had been broken) the officer saw a monkey wrench and bolt cutters. When the officer first saw him, the defendant was wearing gloves, but when he finally emerged from the yard, the gloves had been discarded. They were found in the yard later. The defendant denied knowing anything about the tools.
After arresting the defendant and incarcerating him the officer and a police sergeant went to the home of the defendant's parents. They were met at the door by the father, who, upon being informed of their purpose, invited them in, and, according to the police, gave them permission to search the premises.After explaining that his son stayed there only occasionally, he conducted them to the sun parlor where the son slept when he was there. He declined, however, to sign a written authorization to make the search, saying that his wife would do so and went to call her.
While the husband was upstairs, the police, in making a search of the sun parlor, found an electric hand saw (later identified as the one which was taken from the confectionery store on October 28) under a cot. When the wife appeared, she also refused to sign the authorization. Thereupon the search was discontinued and the police left the premises. Later, when the defendant was confronted with the saw at the station house, he claimed that he had won it in a crap game a few days before from a person he knew only by sight. He was also unable to identify any of the other participants in the game.
At the trial, when the arresting officer was asked about the search on direct examination, the defendant objected on the ground that permission to search had not been given, but the objection was overruled and the officer was allowed to testify in detail as to the search and seizure. The police sergeant also testified as to the grant of permission and the ensuing search of the sun parlor. When the State offered the saw as an exhibit, the defendant did not object and it was admitted evidence. Photographs showing the results of ransacking the store
on the prior occasion and of the tools lying where they were found after the attempted second burglary, were also introduced in evidence without objection. When the State rested, the defendant moved for a ...