Opinion
[H.C. No. 40, September Term, 1957.]
Decided December 24, 1957.
CRIMINAL LAW — Attempted Statutory Burglary Is Common-Law Misdemeanor. An attempt to commit statutory burglary (Code (1951), Art. 27, § 38) constitutes a common-law misdemeanor. p. 597
CRIMINAL LAW — Common-Law Crime Without Fixed Penalty — Sentence for, Not Invalid Unless Cruel or Unusual — Attempt Not Necessarily Controlled by Statutory Penalty for Completed Offense. A sentence for a common-law crime for which no penalty is fixed is not invalid unless it amounts to cruel or unusual punishment, and, in the case of an attempt, is not necessarily controlled by the statutory penalty for the completed offense. p. 597
J.E.B.
Decided December 24, 1957.
Habeas corpus proceeding by Delano Leonard Tillett against the Warden of the Maryland House of Correction. From a refusal of the writ, petitioner applied for leave to appeal.
Application denied, with costs.
Before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
The applicant filed a petition for a writ of habeas corpus based upon the contention that the sentence under which he is confined was illegal. His petition was denied by Judge S. Ralph Warnken, sitting in the Baltimore City Court, and the applicant seeks leave to appeal.
The applicant pleaded guilty to a charge of an attempt to break and enter into a storehouse (in this instance a supermarket). The offense which was attempted constitutes statutory burglary (Code (1951), Art. 27, § 38), and an attempt to commit such an offense constitutes a common-law misdemeanor. Hochheimer, Criminal Law (2d Ed.), Sec. 266; Wharton, Criminal Law (12th Ed.), Sec. 212. The maximum penalty for violation of Sec. 38 of Art. 27, supra, is ten years' imprisonment. A sentence for a common-law crime for which no penalty is fixed is not invalid unless it amounts to cruel or unusual punishment, ( Roberts v. Warden, 206 Md. 246, 111 A.2d 597); and, in the case of an attempt, is not necessarily controlled by the statutory penalty for the completed offense. Williams, Criminal Law (1953), Secs. 135, 152; Casey v. Warden, 198 Md. 645, 80 A.2d 896.
Application denied, with costs.