110 A. 854 | Md. | 1920
The indictment in this case contains three counts. The first alleges that the traverser
*344"on the 29th day of June, in the year of our Lord nineteen hundred and nineteen, about the hour of 6 in the morning of the same day, at the county aforesaid, the dwelling house of one Ernest Volkhart, there situate, unlawfully did break with intent to commit a certain felony there and therein, to wit," etc.
The second count is the same excepting it alleges the dwelling house to be that of one Affena Ripkin, and the third charges him with larceny.
There was a demurrer to the indictment and to each count thereof, which was overruled (the record states that it was to a plea, but that is corrected by agreement). There was also a motion to quash which was overruled, and the traverser then entered the plea of "not guilty." He was convicted and sentenced to confinement in the penitentiary for three years. This appeal was taken, and the only questions properly before us are presented by the rulings on the demurrer and the motion to quash.
It is contended that the first and second counts are defective because it is not alleged that the traverser feloniously and burglariously broke and entered, etc., but under our decisions that contention cannot be sustained. The statute on which those counts are based (Sec. 33 of Art. 27 of Code) does not make the offense burglary, or a felony. To constitute burglary at common law the breaking must have been in the night time, while this statute provides that:
"Every person, his aiders, abettors and counsellors, who shall be convicted of the crime of breaking a dwelling house in the day time with the intent to commit murder or felony therein * * * shall be sentenced to the penitentiary for not less than two nor more than ten years."
The fact that in the Code this section is under the subdivision "Burglary" is not material. There are a number of instances in Article 27 of the Code where crimes are classified under a particular head which do not amount to the crime under which they are so placed. For example, Section 422 is under the subdivision "Rape," but no one would contend that the violation of that section would be rape, as the statute declares that it shall be deemed a misdemeanor and provides that "nothing in this section contained shall be construed to affect or interfere with the law relating to the crime *345
of rape as now in force in this State." Section 294 is under the head of "Larceny," although in important respects that section falls far short of larceny and is declared by the statute to be a misdemeanor. It was said in State v. Popp,
It is also contended that those counts were defective because the time is insufficiently alleged in order to comply *346 with the statute, but we are of the opinion that the charge that on the 29th day of June, 1919, "about the hour of 6 in the morning of the same day" did sufficiently show that the traverser was charged with breaking a dwelling house in the day time. It would scarcely be contended that that would be a sufficient allegation of time in an indictment for burglary at common law, and in this State we are governed by the common law in reference to that crime, as our statute simply prescribes the punishment for burglary, without defining what should constitute it, or affecting the requirements of the common law, in order to convict of that crime. "Burglary, at common law, is the breaking and entering the dwelling house of another in the night, with intent to commit some felony within the same, whether the felonious intent be executed or not." 2 Wharton Crim. Law (11th Ed.) 1187, Sec. 966; 5 Am. Eng. Enc. of Law, 44; 9 C.J. 1009. It could not be correctly said that 6 o'clock in the morning on the twenty-ninth of June is in the night time. It is said in 9 C.J. 1021 that: "In the absence of statutory provision to the contrary, the `night time,' within the definition of burglary, is, as was held at common law, that period between sunset and sunrise during which there is not daylight enough by which to discern a man's face." In the note to that statement there is a quotation from 4 Black. Com. 224 that: "The malignity of the offense does not so properly arise from its being done in the dark, as at the dead of night, when all the creation, except beasts of prey, are at rest, when sleep has disarmed the owner and rendered his castle defenseless." In 4 R.C.L. 425, Par. 13, it is said: "As has been seen, the burglarious act, at common law, must have been committed in the night season. This was not confined to the exact period between sunrise and sunset (sic), and the rule is thus laid down by Blackstone: `If there be daylight or crepusculum enough, begun or left, to discern a man's face withal, it is no burglary. But this does not extend to moon-light.' This rule of Blackstone is substantially supported in *347 those States where there is no statutory definition of night time." It would seem, therefore, to be certain that 6 o'clock in the morning of June 29th would not be sufficient on a charge of burglary, because it would not be within the part of the twenty-four hours that would permit of a conviction for that crime, but it would be day time, within the meaning of a statute such as that now before us.
But great stress is laid on the fact that these counts used the language "about the hour of 6," etc. The usual form of a common law indictment for burglary alleges the breaking to be "about the hour of," etc. 2 Arch. Cr. Pl. and Pr. 263; 1 Wharton's Prec.of Indict. and Pleas (3rd Ed.) 349, etc. It is not deemed insufficient by reason of the word "about." 2 Hawk. P.C., Ch. 23, Sec. 87; State v. Seymour,
But the Courts take judicial notice of the computation of time. "The time when the moon or the sun rises or sets on a particular day is judicially known." 16 Cyc. 857. "Judicial knowledge extends to the duration of day and night at a particular place at a particular time, and therefore that at a certain hour on a certain date it was or was not daylight." 15 R.C.L., 1100, Par. 32. The case of State v. Gunderson, 56 Wash. 672, 106 P. 194, 21 Ann. Cas. 350, is referred to, and in the notes in theAnn. Cas. on page 352 there are a number of cases cited to show that the Courts will take judicial notice of the hours of sunrise and sunset *348
on a particular day. In Munshower v. State,
We know of our own knowledge that the sun rises before 6 o'clock on June 29th. Almanacs tell us that it does, and did in 1919, and no jury, especially in an agricultural county like Harford, where this crime was committed and the case was tried, could have failed to know that on the eighth day from the longest day in the year the sun rose in that county before 6 o'clock, and that it was daylight a considerable time before that. Gruber'sHagerstown Almanack, which is referred to in Munshower's Case,
fixes time of sunrise on June 29, 1919, at 4.33 o'clock. We can have no doubt about the sufficiency of the allegation to show that the breaking was alleged to be at an hour which was in the daytime. In 15 R.C.L., 1060, Par. 3, it is said: "If they are proper subjects of judicial knowledge, the judge may inform himself in any way which may seem best to his discretion, and *349
act accordingly. Judges may refresh their memories on matters properly subject to judicial notice from encyclopedias, dictionaries or other publications, but the mere appearance of facts therein does not entitle them to judicial notice, unless they are such as to be part of the common knowledge. So it is perfectly proper to receive evidence as to facts that will be judicially noticed, when it is received merely as an aid to the memory and understanding of the Court." But if there could be any doubt elsewhere about the question, it was settled in this State in Line v. Line,
The appellant stated at the argument, and in his brief, that the Court below allowed the State to offer evidence that the breaking was in the evening about the hour of 6 o'clock, and not in the morning. It is sufficient to say that no such question is before us, as there is no exception in the record, and the case is presented to us only by the action of the Court in overruling the demurrer and the motion to quash, but in order that there may be no misunderstanding about it we will add that that could have made no difference, as the State was not confined in its proof to the hour named, but could have proved that the breaking was at any other hour, if in the daytime, which 6 o'clock in the evening of June *350 29th clearly was. 9 C.J., 1062; 3 Enc. of Pl. Pr., 743-744 and notes.
There can be no question about the right to join different counts to meet the proof as it may develop, or to join a count for larceny with such as the first and second counts. Without quoting from them, we will refer to Weeks v. State,
We have thus considered the questions raised by this appeal and finding no error in the rulings of the lower Court, the judgment must be affirmed.
Judgment affirmed, the appellant to pay the costs. *351