Opinion
No. 141, September Term, 1967.
Decided May 13, 1968.
BURGLARY — Conviction Reversed Where Offense Shown To Have Been Committed During Daytime. Appellant's conviction of burglary was reversed and his case remanded for a new trial, where the evidence established that the offense occurred between 8 a.m. and 1 p.m. p. 155
Decided May 13, 1968.
Appeal from the Criminal Court of Baltimore (CULLEN, J.).
Clarence Bright was convicted in a non-jury trial of burglary, and, from the judgment entered thereon, he appeals.
Reversed and remanded for new trial.
The cause was submitted to MURPHY, C.J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.
Stanley S. Cohen for appellant.
Bernard L. Silbert, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Charles E. Moylan, Jr., State's Attorney for Baltimore City, on the brief, for appellee.
On May 22, 1967, the appellant, Clarence Bright, was convicted of burglary in the Criminal Court of Baltimore before Judge James K. Cullen, sitting without a jury. Appellant was sentenced to three years in the Maryland House of Correction.
Appellant's sole contention raised on this appeal is that the evidence was not sufficient to sustain the conviction.
The thrust of the appellant's contention is that since the evidence produced at trial established that the offense occurred between 8:00 a.m. and 1:00 p.m. an essential element of burglary is absent, namely, the commission of the offense in the nighttime.
The indictment under which the appellant was convicted alleges "that Clarence Bright * * * feloniously committed burglary in the nighttime of the dwelling of Leatrice Johnson * * *." We therefore find that appellant's contention is well taken.
Here the uncontradicted evidence, according to the stipulation entered into between counsel for the appellant and the assistant State's attorney, shows that the alleged burglary occurred between the hours of 8:00 a.m. and 1:00 p.m., which would be in the daytime and not in the nighttime as alleged in the indictment under which appellant was convicted. The judgment must therefore be reversed.
Judgment reversed and case remanded for a new trial.