Summary
In Hackley v. State, 237 Md. 566, 567, 207 A.2d 475, 476 (1965), we held that a motion picture theater fell within the definition of storehouse.
Summary of this case from Bane v. StateOpinion
[No. 200, September Term, 1964.]
Decided March 2, 1965. Motion for rehearing filed March 15, 1965, denied March 30, 1965.
BREAKING STOREHOUSE — Motion Picture Theater Considered To Be A Storehouse Within Meaning Of Art. 27, Sec. 342. Where the indictment charged the breaking of a storehouse with intent to steal personal property of a value of less than one hundred dollars and the breaking was of a motion picture theater, appellant claimed that the trial court erred in denying his motion for judgment of acquittal. The proof was that the building broken into was a motion picture theater, that efforts had been made to open the safe, and that "the storage cabinets" in which the popcorn was stored had been broken into, as had the refrigerator in which the ice cream sold at the theater was stored. The Court in deciding that the theater was a storehouse within the meaning of Sec. 342 of Art. 27 of the Code, considered cases dealing with breaking "a storehouse or other outhouse" under Sec. 32 of Art. 27 and determined that the term storehouse in Sec. 342 should be given the same meaning as in Sec. 32, since the difference between the two sections, on this aspect, is only as to the value of the personal property intended to be stolen. Prior cases have regarded a storehouse as used in Sec. 32 as a form of outhouse within the contemplation of the statute. pp. 567-569
BREAKING AND ENTERING — Ownership Alleged And Proven Need Not Be That Of Legal Title Holder If Another, Not The Accused, Is In Lawful Possession Of Building Under A Special Property Interest — In Instant Case There Was Enough Evidence To Show Building Broken Into By Accused Was Not His, That He Had No Right To Enter Without Permission Of Lawful Occupier, And To Identify Building And Personal Property Therein So As To Protect Accused Against Subsequent Prosecution For Same Offense. pp. 569-570
S.K.S. Decided March 2, 1965.
Motion for rehearing filed March 15, 1965, denied March 30, 1965.
Appeal from the Circuit Court for Montgomery County (SHURE, J.).
Leslie W. Hackley was convicted, by a jury, of breaking and entering the Silver Theater in the Silver Spring Shopping Center in Montgomery County with intent to steal personal property of a value of less than one hundred dollars, and from the judgment entered thereon, he appeals.
Affirmed.
The cause was argued before PRESCOTT, C.J., and HAMMOND, MARBURY, SYBERT and BARNES, JJ.
John T. Bell, with whom were Bell Bell on the brief, for appellant.
James S. Sfekas, Special Attorney, with whom were Thomas B. Finan, Attorney General, and Leonard T. Kardy and Judson R. Wood, State's Attorney and Assistant State's Attorney, respectively, for Montgomery County, on the brief, for appellee.
The appellant Hackley was charged in one indictment, having two counts, with breaking and entering the Silver Theater in the Silver Spring Shopping Center in Montgomery County, (a) with the intent to steal the personal goods of another of the value of one hundred dollars or more (a violation of Code (1964 Cum. Supp.), Art. 27, § 32), and (b) with the intent to steal the goods and chattels of another under the value of one hundred dollars (a violation of Code (1957), Art. 27, § 342). In another indictment he was charged with the malicious destruction of property in the Silver Theater. The charges were tried together before a jury which reached verdicts of not guilty of breaking with felonious intent and not guilty of malicious destruction of property, but guilty of breaking and entering with intent to steal personal property of a value of less than one hundred dollars.
Hackley claims on appeal that the trial court erred in denying his motion for judgment of acquittal, made on two grounds: (a) the indictment charged the breaking of a storehouse and the testimony showed the breaking of a motion picture theater; (b) the State did not prove the allegations of the indictment as to the ownership of the theater.
The count on which the jury found the appellant guilty identified the storehouse which had been entered as the Silver Theater. The proof was that the Silver Theater was a motion picture theater, that it had been broken into, that efforts had been made to open the safe, and that "the storage cabinets" in which the popcorn was stored had been broken into, as had the refrigerator in which the ice cream sold at the theater was stored. We think the Silver Theater was a storehouse within the meaning of Sec. 342 of Art. 27 of the Code as the cases in this Court have interpreted it. We said in Martin v. State, 203 Md. 66, 75, that a factory, which was a type of building not mentioned in the statutes there involved, was included within the meaning of the term storehouse which was named in the statutes, because goods manufactured in the building were kept there for some period after being made ready for sale. Both in Putnam v. State, 234 Md. 537, 543, and McLaughlin, Jr. v. State, 234 Md. 555, 558, Chief Judge Brune, for the Court, pointed out that Sec. 32 of Art. 27 dealt with breaking "a storehouse or other outhouse" (emphasis supplied) and we held in Putnam that a drug store was an outhouse within the contemplation of Sec. 32 (and, inferentially, within the contemplation of Sec. 342), and in McLaughlin that proof that a bowling alley was broken into was sufficient to sustain a verdict of guilty on an indictment which charged the breaking of a storehouse. In Hardison v. State, 226 Md. 53, 58, Judge Prescott, speaking for the Court, adopted a dictionary definition of storehouse as follows: "1. A house or building in which things are stored. 2. Any repository or source of abundant supplies * * *," and equated storeroom as used in Sec. 33 of Art. 27 with storehouse as used in Sec. 32. See also Jones v. Hungerford, 4 G. J. 402, 406, which held that a schoolhouse, not parcel of a dwelling house, was an outhouse and suggested that all buildings other than dwellings were covered by the statute there involved, which made it a crime to burn a variety of specified buildings, "or other out house not parcel of any dwelling house." This is significant because Putnam and McLaughlin show that a storehouse as used in Sec. 32 is a form of outhouse and Sec. 32, after referring to a storehouse and other named buildings, refers to any "other outhouse." The term storehouse in Sec. 342 certainly is to be given the same meaning as it has in Sec. 32, since the difference between the two, on this aspect, is only as to the value of the personal property intended to be stolen.
There is no real substance to the contention that ownership of the theater was not proven. Most, but not all, States require that the ownership of the building burglarized be stated in the indictment and proven so as to negative a right of entry by the accused and to establish identity. See Anno. 169 A.L.R. 887. It is generally held that the ownership alleged and shown need not be that of the legal title holder if another, not the accused, is in lawful possession of the building involved under a special property interest. The propositions set forth in this paragraph are supported by 13 Am.Jur.2d Burglary Sec. 37, p. 342, and 4 Wharton's Criminal Law and Procedure (Anderson 1957), Sec. 1784, p. 604, and the cases.
For example, see Liakas v. State (Neb.), 72 N.W.2d 677; Key v. Dozier (Ala.), 42 So.2d 254; Taylor v. State (Miss.), 58 So.2d 664; and Evans v. State (Ala. Ct. of App.), 41 So.2d 615. In the last cited case it is stated (p. 617 of 41 So.2d) "* * * and hence the test for determining in whom ownership of the burglarized premises should be laid in an indictment for this offense is not ownership in the sense of legal title, but ownership in the sense of right of occupancy or possession."
The indictment alleged that the Silver Theater was owned by Silver Spring Shopping Center, Inc., was occupied by Van Curler Broadcasting Corporation, and was operated by Stanley Warner Management Corporation. The State offered testimony, including the corporate papers of the Van Curler Broadcasting Corporation, from which the jury fairly and reasonably could have found that the Van Curler Broadcasting Corporation (a body corporate which was a subsidiary of a corporation known as Stanley Warner Theaters) was the lessee and operator of the Silver Theater and that it was the owner of the personal property in the theater, and that Stanley Warner Management Corporation, another Stanley Warner Theaters subsidiary, managed the theater for Van Curler Broadcasting Corporation. This was enough to show that the building broken into by the appellant was not his and that he had no right to enter it without the permission of the lawful occupier, and enough to identify the building broken into and the personal property therein so as to protect the accused against a subsequent prosecution for the same offense.
In our view the judgment and sentence appealed from were the products of a trial free from prejudicial error.
Judgment affirmed.