Maryland Baltimore County Criminal Burglary Dwelling Felonies Intent Lawyers Attorneys

JOHN GEORGE MARSTON v. STATE OF MARYLAND

Court of Special Appeals of Maryland

April 14, 1970, Decided

At approximately 10:00 P.M. on March 22, 1969, Donald Marston, the appellant's brother, was seen going to the rear of the building at 439 Community Drive in Baltimore County, Maryland. A neighbor called the police after hearing breaking glass.

While Donald was out of sight in back of the building, the appellant continued to circle the block in his automobile, blinking his automobile lights each time he passed in front of the building at 439 Community Drive.

This blinking occurred between two and five times. When the police arrived they found Donald Marston wandering in the street apparently pointlessly; he had been drinking. Defendant was convicted, along with a codefendant, of burglary in a court trial in the Circuit Court for Baltimore County (Maryland). He was sentenced to a term of three years. Defendant appealed from the conviction and sentence.

Issues:

Whether the building broken into was a "dwelling?"

Was there sufficient evidence of appellant's felonious intent?

Conclusion:

In the instant case, there must have been occupancy by someone other than the appellant or his brother, Donald Marston, before the conviction may be affirmed. If the occupancy is by appellant or by his codefendant, then the dwelling becomes their dwelling, and at common law one could not be guilty of burglary of his own dwelling. If the dwelling is used as the constructive dwelling of Mrs. Clayton, the owner, because she allowed her servant, Donald Marston, to sleep there, then the use as a house terminated in November, 1968, when Mrs. Clayton evicted Donald Marston and later instituted judicial process to recover the keys from him. Thus, the constructive dwelling of the owner, if any, had clearly terminated approximately three months before the present crime. Thus, at the time of the breaking, the owner was not living inthe building herself, and specifically had not authorized anyone, including the Marstons, to sleep there. In view of these facts, the building is not a dwelling. The fact that Donald Marston occasionally slept in this building while recovering from his excessive drinking does not convert it into a dwelling house, the mere fact that one sleeps there on rare occasions does not convert the building into a dwelling.

Since this Court agrees with appellant's first contention, there will be no need to discuss the second contention of sufficient evidence of appellant's felonious intent.

Conclusion:

The court reversed the judgment and remanded the case for entry of judgment of acquittal.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content

Maryland Baltimore County Criminal Burglary Dwelling Felonies Intent Lawyers Attorneys

By: Atchuthan Sriskandarajah

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