Summary
In Gazaille v. State, 2 Md. App. 462, 464-65, 235 A.2d 306, the owner's precise testimony indicated that while he was not positive of the fair market value on the date of the theft he felt it would be between $100.00 and $150.00.
Summary of this case from Jones v. StateOpinion
No. 339, Initial Term, 1967.
Decided November 21, 1967.
APPEAL — Waiver Of Allegations Not Raised Below. Appellant's allegation that certain articles, constituting "fruits" of an illegal arrest, were introduced into evidence, was not properly before the Court on appeal, where there had been no objection to the introduction of the articles at the trial. Rule 1085. p. 463
LARCENY — Grand Larceny Is Part Of Existing Law. Grand larceny was a common-law crime and is part of existing law in this State under Maryland Declaration of Rights, Art. 5, which adopted the common law that existed on July 4, 1776. p. 464
BURGLARY — Statute Sufficiently Describes Crime Of Daytime Housebreaking — Where Nighttime Element Not Proven Defendant Can Be Convicted Of Lesser Included Offense. Code (1957), Art. 27, § 30(b) sufficiently describes the crime of daytime housebreaking. p. 464
Where the nighttime element is not proven, a defendant can be convicted under Code (1957), Art. 27, § 30(b) of the lesser included offense of daytime housebreaking. p. 464
STOLEN GOODS — Owner's Testimony As To Value Held Sufficient. Direct testimony of the owner of stolen goods that their value was over $100 was sufficient evidence as to the value of the goods. p. 464
WITNESSES — Credibility Weighed By Jury. The jury, as the trier of facts, weighs the credibility of the witnesses. p. 464
Decided November 21, 1967.
Appeal from the Circuit Court for Montgomery County (PUGH, J.).
Maurice Ernest Gazaille was convicted in a jury trial of day-time housebreaking and grand larceny, and, from the judgments entered thereon, he appeals.
Affirmed.
The cause was argued before MURPHY, C.J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.
Roger W. Titus for appellant.
Frank A. DeCosta, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Linthicum, Jr., State's Attorney for Montgomery County, and James F. Tomes, Assistant State's Attorney for Montgomery County, on the brief, for appellee.
Maurice Ernest Gazaille, the appellant, was convicted by a jury of daytime housebreaking and grand larceny in the Circuit Court for Montgomery County before Judge James H. Pugh. Such facts as are necessary for the opinion are stated hereinafter.
I
Gazaille complains that certain articles, constituting "fruits" of an illegal arrest, were introduced into evidence. Since there was no objection to the introduction of the articles at the trial, the question is not properly before this court, Maryland Rule 1085, Porter v. State, 230 Md. 535, 187 A.2d 870. In Mapp v. Ohio, 367 U.S. 643, 659, 81 S.Ct. 1684, 1693 (1961) at footnote 9, the Supreme Court stated that:
"As is always the case, however, state procedural requirements governing assertion and pursuance of direct and collateral constitutional challenges to criminal prosecutions must be respected."
II
Gazaille complains that Maryland law does not define the crimes of grand larceny and daytime housebreaking but merely provides a punishment for the crimes; that since the crimes did not exist at common law and are not defined under present statutes, daytime housebreaking and grand larceny do not exist under Maryland law.
Maryland Code Art. 27, § 340 does not define grand larceny but merely provides a punishment. However, grand larceny was a common law crime, Clark and Marshall, Law of Crimes § 12.07 (6th Ed. 1958), and is a part of existing law in Maryland under Article 5 of the Maryland Declaration of Rights which adopted the common law that existed on July 4, 1776.
Maryland Code Art. 27, § 30(b) extends the definition of burglary to include "Any person * * * who shall be convicted of the crime of breaking a dwelling house in the daytime * * *." We think that is a sufficient description of the crime. See Swift v. State, 224 Md. 300, 167 A.2d 762. Nevertheless, housebreaking was also a crime at common law, Putnam v. State, 234 Md. 537, 542-44, 200 A.2d 59, 62-3.
III
Gazaille complains that there was not enough evidence to establish the crime took place in the daytime, and that the value of the stolen goods was one hundred dollars ($100.00) or more.
Since the time of the housebreaking could not be ascertained, the appellant was charged with and convicted of the lesser included offense — daytime housebreaking as opposed to common-law burglary. St. Clair v. State, 1 Md. App. 605.
Appellant relies on People v. Zwierkowski, 368 Mich. 56, 117 N.W.2d 179. In that case, the defendant was convicted of night-time burglary — the conviction was reversed because it was not proven that the defendant had broken into the house at night. This is not inconsistent with St. Clair, supra, where the nighttime element is not proven, the defendant can be convicted of the lesser included offense.
There was direct testimony by the owner of the stolen goods that the value was over one hundred dollars ($100.00). This is sufficient evidence of the value of the goods, Scott v. State, 1 Md. App. 481, 494, 231 A.2d 728. The jury as the trier of the facts weighs the credibility of the witnesses, Hill v. State, 237 Md. 630, 206 A.2d 677, Tillery v. State, 236 Md. 614, 203 A.2d 704. The owner's precise testimony indicated that while he was not positive of the fair market value on the date of the theft he felt that it would be between $100 and $150. We think this testimony was sufficient to make the issue a question for the fact finder.
Judgment affirmed.