delivered the opinion of the Court.
The appellant was found guilty by a jury in the Circuit Court for Prince George’s County of housebreaking and grand larceny, being the first and second counts respectively of the indictment under which he was charged. Concurrent sentences of 10 *593 years on the first count and 15 years on the second count were imposed “to run consecutively with any sentence previously imposed by any Court of competent jurisdiction.”
THE INDICTMENT
The first count of the indictment charged that the appellant “* * * thg dwelling house of one Gaston Paul Jennett and Sheila Jennett * * * feloniously did break with intent to commit a certain felony there and therein, to wit: with intent then and there certain goods and chattels in the said dwelling house then and there being found, then and there feloniously to steal, take and carry away, contrary to the form of the Statute in such case made and provided, and against the peace, government and dignity of the State.” The appellant contends that the lower court erred in denying the motions for judgment of acquittal “with regard to the defect in the first count of the indictment in that the said indictment failed to charge an essential element of the offense of housebreaking, namely, that the breaking was in the daytime”. The question is whether the first count of the indictment sufficiently stated an offense so as to permit the sustaining of the conviction under it. 1
*594
Under the common law, the felony of burglary was the breaking and entering of a dwelling house of another by night with the intent to commit a felony.
Clark and Marshall,
Law of Crimes (6th Ed.) § 13.00 p. 870. It is a felony in Maryland,
Maryland Declaration of Rights,
Art. 5, and although the penalty for its commission is fixed by statute, the crime of burglary is not defined therein, Md. Code, (1967 Repl. Vol.) Art. 27, § 29. See
McGrow v. State,
“The rule which seems to be generally recognized draws a line of demarcation between an indictment or information which completely fails to state an offense and one which alleges all the elements of the offense intended to be charged and apprises the accused of the nature and cause of the accusation against him, even though it is defective in its allegations or is so in-artificially drawn that it would have been open to attack in the trial court.” Putnam v. State,234 Md. 537 , 541.
In our view the indictment in the instant case does charge an offense, as it alleges all the elements of the crime proscribed by § 30(a) — the breaking of a dwelling house with intent to steal. We think that the time of the offense, “in the daytime”, is not an essential element of the crime, and is not used in the statute to define or characterize the offense, but merely to distinguish it from burglary which must be committed in the nighttime. We find support in our view in the rationale of
St. Clair v. State,
The appellant cites no authorities which support his contention. We find further support for our view in cases in other jurisdictions.
4
In
State v. Baker,
“Certainly, the weight of authority — practically all the authority — is to the effect that an indictment for burglary in the daytime is good without expressly alleging that it was in the daytime.”
In
State v. Eubanks,
77 Id. 443,
Of course, an indictment must be sufficiently definite so as to inform the accused of the charge against him, to enable him to prepare his defense and to protect him against subsequent prosecutions for the same offense.
Lynch v. State, 2
Md. App. 546, 562. The indictment here fulfilled these requirements. Under its charge the only offense of which the appellant could have
*597
been properly convicted was daytime housebreaking. A conviction of burglary cannot be sustained without proof that the offense occurred in the nighttime,
Bright v. State,
The appellant filed a motion to suppress and exclude evidence as seized by an “unlawful and illegal search.” The motion was denied at a hearing before the trial on the merits. Objections at the trial to the admission of the evidence seized were overruled and a motion at the conclusion of the testimony to ex- *598 elude the evidence was denied. The appellant claims error in the rulings on the grounds that the arrest of the appellant was illegal, the search incident thereto unreasonable, and the seizure of the evidence unlawful.
THE ARREST
Evidence adduced at the hearing on the motion showed that Sarah Jean Moskel, while in her apartment on the second floor at s' Deer Park Drive, Gaithersburg, Maryland on 15 February 1967, heard a noise in the next apartment. She knew the resident of that apartment was working and looking out the window did not see his car. She went into the hall and again heard noises in the adjoining apartment. She looked out the window and saw two men- — “one was carrying rifles and the other man was carrying something covered with a sheet.” The appellant was one of the men. The men were both wearing gloves although it was an unusually warm day. She saw the men put the articles in the back of a station wagon. They then re-entered the building and went ro the third floor. The men carried a television-set from the building and put it in the “green Falcon station wagon,” which “had other things in it.” She had resided in the apartment house for four and a half years, knew that the twrn men did not reside there and had not seen their car before. She called the police. An officer came to her apartment and she related the facts to him. She “went around to different apartments” and “saw that they were broken into” and told the officer about them.
Corporal Ralph Cooley of the Montgomery County Police received a radio call in his cruiser about 2:30 P.M. on 15 February to go to 9 Deer Park Drive. He did not “remember the exact wording of the call. Something to the effect that two men were carrying property from the apartment building, placing it in a car to the rear of the building.” The only description of the men given that he could recall was that they were “two-white males.” The description of the car was that it was “a green or blue, light colored green or blue Falcon station wagon.” Upon arriving at the apartment building he saw “a ’63 Falcon, light blue in color, bearing Maryland tags parked in the rear of No. 9 Deer Park Drive. It was occupied by two-white males, one under the steering wheel and one on the op *599 posite side in the front seat. I pulled in front of the vehicle. As I was getting out of the police cruiser, the operator, the one under the steering wheel, got out of the car and met me near the front of my car and near the front of his car. At this point I asked him for some identification, which he produced.” He told them they could not leave. He asked the appellant if that was his property he was moving. The appellant said it belonged to his girl friend whose name was “Keeney”, that she lived on the second floor and that he thought she was at work at GEICO but he did not know the phone number and was not sure she was there at the time. The officer could see that the station wagon contained a console model television lying face down. “The back seat was turned flat to make the entire back of the station wagon on a flat cargo space. It had several cases which appeared to be gun cases on the right side of the vehicle inside, and several pillow cases with articles in them * * *. The whole floor space was filled with what appeared to be pillow cases with articles in them, bedspreads, weapons in cases, other small numerous items from houses such as radios, et cetera.” There was no other vehicle “near this description” given on the lookout and the two men were the only ones to the rear of the building.
Officer Michael J. Keller of the Montgomery County Police received a radio call in his police cruiser on 15 February “to respond to No. 9 Deer Park Drive * * * The call came out stating that there was persons going into apartments, knocking on doors and seeing if the persons that lived in the apartments were at home. If not they were going into the apartments and taking things out.” The call included a license tag number of the car involved — EA 9792. He also received information on the radio while going to the scene that the car was registered in the name of the appellant and that the appellant was a known housebreaker. When he arrived at the scene Cooley was present. The appellant, identified by his drivers permit, was seated on the driver’s side in a Falcon station wagon bearing the license tag given in the lookout. Keller gave the information he had received to Cooley who went into the building and “checked the apartment.” Cooley ascertained that an individual by the name of Keeney lived on the second floor of the apartment house, but the individual was a male. He talked *600 to Mrs. Moskel and went to the third floor and observed several apartment doors ajar. He placed the appellant and his companion under arrest.
The appellant urges that he was arrested by Corporal Cooley when that officer first arrived on the scene and that at that time Cooley did not have probable cause for the arrest nor is the record sufficient to show that any member of the police team had, at that time, probable cause for his arrest. But we need not decide the question raised by this argument for we think, assuming that an arrest was made as the appellant claims and that it was illegal, that there was a subsequent arrest of the appellant which was legal. When Cooley came out of the apartment building and placed the appellant under arrest he was in receipt of the information received on the radio by Keller, the information given him by Mrs. Moskel and had observed the broken apartments and the articles in the station wagon. We have no difficulty in determining that he then had probable cause to believe that the felony of daytime housebreaking, Code, Art. 27, § 30(b) or larceny, Code, Art. 27, § 340 had been committed and that the appellant was the one who committed it.
Ervin v. State,
THE SEARCH
After the arrest of the appellant, which we have determined to be legal, other police officers arrived on the scene. One of them drove the appellant’s car to the police station. It was searched upon its arrival, about 3 :15 P.M., and an inventory made of the contents. The car was turned over to a Mrs. Reagan several days later. By the testimony of the officers on the subject, the car was taken to the station to search it for evidence of crime and to inventory its contents pursuant to an al
*601
leged regulation of the police department pertaining to impounded cars. Although a regulation was discussed, it was not otherwise identified or proffered. The lower court, after finding that the arrest was legal, held that the search of the car was not incident to the arrest as “too far remote in time and place.” However, it found that the search was reasonable under
St. Clair v. State,
“Automobiles, because of their mobility, may be searched without a warrant upon facts not justifying a warrantless search of a residence or office. * * * The cases so holding, have, however, always insisted that the officers conducting the search have ‘reasonable or probable cause’ to believe that they will find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search.”
The record before us is clear that the officers who assisted in the search had reasonable or probable cause to believe that evidence would be found in the appellant’s car.
THE ADMISSIBILITY OF THE EVIDENCE
The crimes for which the appellant was tried and convicted and which are the subject of this appeal did not arise from the events on 15 February at 9 Deer Park Drive but from the breaking of the dwelling of Gaston Paul Jennett and Sheila Jennett at 6419 Livingston Road, Apartment 102, Oxon Hill, Maryland. Commander Jennett testified that he and his wife left their apartment on 9 February 1967 and returned about 5 :30 P.M. on 14 February. When they left the apartment the door was locked and “it had a chain on it on the inside.” When they returned and unlocked the door, he observed that the chain “was cut in the middle. It was attached to the door on one *603 side and the door frame on the other.” The door had a lock in the handle and there was a separate lock on the chain. He went in the bedroom and saw that his jewelry box had the lid open. Two pistols were missing from drawers in a night stand and a portable television set was missing. He called the police. He subsequently ascertained that goods of the total value of over $450 had been taken. Among the articles taken were a cap and ball pistol, serial No. 123258, valued at $100-$125, a Walther pistol, model 5, .25 caliber, serial No. 620234, valued at $56, a clip for the Walther and a man’s topaz ring, valued at $25. At the trial these articles were identified by Jennett as belonging to him. The two pistols and the clip were found in the appellant’s car when it was searched and admitted in evidence over objection. A pair of bolt cutters were also found in the car. A special agent of the F. B. I., qualified as an expert in tool mark identification, testified that it was his opinion, based on examination with a comparison microscope, that the chain on Jennett’s door had been cut with the bolt cutters found in the car. The cutters were admitted in evidence over obj ection.
The appellant’s contention that the lower court erred in admitting the pistols, clip and cutters in evidence is based on his allegation that the warrantless search by which they were seized was unreasonable as not incident to a legal arrest. We have •found, even assuming that the appellant was first illegally arrested, that his subsequent arrest was legal and that the search of the car, made after the legal arrest, was reasonable as incident thereto. Therefore the challenged articles were properly admissible, Hewitt v. State, supra, page 114-115, and the contention fails.
Thomas B. Bever,
6
who was with the appellant during the events at 9 Deer Park Drive on 15 February and arrested with the appellant, was taken to the police station. The topaz ring identified by Jennett as taken from his apartment was found on Bever’s person. It was admitted in evidence over objection. 'The appellant claims error, alleging that the ring was not in
*604
the possession of the appellant and that it was not shown that the appellant took it or ever had custody of it. He cites
Matthews v. State,
Having found that there was a legal arrest and a lawful search and that the challenged evidence was properly admissible, there was no error in the rulings of the lower court denying the motions to suppress and exclude the evidence and overruling the objections to the evidence. As the further contention that the court erred in denying the motions for judgment of acquittal is predicated on error in denying the motions to suppress, the contention fails.
*605 THU INSTRUCTIONS TO THE JURY
The instructions to the jury included the following:
“With respect to the line of testimony, which you will recall for yourselves, which shows that items which were in the Jennett dwelling later showed up in a car which this defendant was operating and apparently, to all intents and purposes, in control of, if you find this set of facts occurred you may then from those facts consider whether or not you will draw the presumption that this defendant was, in fact, the person who broke and entered and stole this property.
The law, you are advised, is that you may infer from the fact that the Defendant was in possession or control of recently stolen property, you may infer that he was the thief or one of the thieves. This applies to the property which was found in the station wagon under his control as well as to the property that was found on his companion who was seated next to him in the station wagon. Whether you draw this inference or not is your decision to make. The Court advises you that in its opinion the law permits you to draw this inference from the possession or immediate proximity of the defendant to this property which was recently stolen.”
Objection was made to that part of instruction pertaining to the ring, defense counsel urging that the court should instruct that the ring could raise an inference of Bever’s guilt but not the guilt of the appellant. As there was other supporting evidence in the instant case — the unexplained possession by the appellant of other recently stolen goods, the pistols and clip, and an instrument of the crime, the bolt cutters — the ring was clearly within the exception stated in Matthews v. State, supra. We think the challenged instruction was proper.
In his brief the appellant urges that the use of the word “presumption” rather than “inference” by the lower court in connection with the possession of the recently stolen goods was *606 improper. But the objection made by defense counsel at the trial was not to this point. He said:
“In addition, counsel would also need an exception to the Court’s advisory instruction on the possession of recently stolen property. In fairness to the Court I think the Court put everything in the affirmative but neglected to give the alternative, which would be the negative. The Court indicated that an inference may be drawn, and emphasized that inference, but did not emphasize, although it did mention, I believe, that it was not necessary that the inference be followed. But I think in giving this type of instruction the Court should with equal vigor indicate that there is one avenue open to the jury to accept, and by the same alternative there is another equal avenue where they may reject this inference depending upon the facts of the case.”
As the particular portion of the instructions now challenged was not “distinctly objected to” below on the grounds now urged, the alleged error of which the appellant complains may not be assigned as a right of error. Md. Rules, 756f and g. Nor do we find plain error material to the rights of the accused. Although the lower court used the word “presumption” once, it used “infer” or “inference” four times immediately thereafter. We note that in his objection counsel considered the instruction as permitting an “inference” to be drawn and so referred to the instructions four times.
Judgments affirmed; costs ta be paid by the appellant.
Notes
. At the trial below the appellant raised the question in argument on the motions for judgment of acquittal. Defenses and objections based on defects in the indictment, other than that it fails to show jurisdiction in the court or to charge an offense, must be raised by motion before trial and failure to do so shall constitute a waiver. However, lack of jurisdiction or the failure of the indictment to charge an offense shall be noticed by the lower court at anytime during the proceedings. Md. Rules, 735b. Also it is at least open to question whether a court exercising criminal jurisdiction has power to make a finding of guilt or to impose a sentence under an indictment which charges no offense. See
Putnam v. State,
The question whether, by the failure to charge the breaking was in the daytime, there was omitted in the indictment an essential element of the offense intended to be charged, thus rendering the indictment defective, was before the Court of Appeals in
Kares v. State,
. Prior to the amendment of 1965 the offense was included in § 32 and was a misdemeanor.
. For a discussion of what is daytime and what is nighttime see
Wiggins v. State,
. We note that in
Kares v. State,
. A charge that the accused “feloniously committed burglary” as authorized by Code, Art. 27, § 31, is sufficient because it incorporates the definition of both common law burglary and statutory burglary, each of which includes a breaking and entering of a dwelling house in the nighttime.
. Bever was also charged in the indictment under which the appellant was convicted.