Any person, his aiders, abettors and counsellors, who shall be convicted of the crime of breaking a dwelling house in the daytime with intent to commit murder or felony therein, or with intent to steal, take or carry away the personal goods of another of any value therefrom, shall be guilty of a felony, and upon conviction thereof, shall be sentenced to the penitentiary for not more than ten years. He asserts that Reed v. State, 7 Md. App. 200, 253 A.2d 774 (1969), supports his position. In Reed the defendant was convicted after a nonjury trial of attempted housebreaking with intent to steal.
These factors lead us to conclude that there was insufficient evidence for the trial judge to find that Kevin Reed entered the apartment building with the intent to commit a crime. In Reed v. State, 7 Md. App. 200, 253 A.2d 774 (1969), the Court of Special Appeals reversed a conviction because there was insufficient evidence of intent to warrant the conclusion that the defendant had attempted to enter a home "with the intent to steal goods therefrom." 7 Md. App. at 204, 253 A.2d at 776.
"An attempt to commit a crime is an act done in pursuance of a criminal intent falling short of the actual commission of the crime, coupled, at least, with the apparent ability to commit the crime intended. Reed v. State, 7 Md. App. 200; Makins v. State, 6 Md. App. 466; Boone v. State, 2 Md. App. 80. So attempted robbery may be predicated upon a finding of intent to steal goods from the person of another by violence but without the consummation of the larceny. See Thompson v. State, 5 Md. App. 191.
The Court of Special Appeals has similarly stated in the past that non-consummation of the crime is an element of a criminal attempt. Maloney v. State, 17 Md. App. 609, 636, 304 A.2d 260 (1973); McDuffie v. State, 12 Md. App. 264, 266, 278 A.2d 307 (1971); Wiggins v. State, 8 Md. App. 598, 604, 261 A.2d 503 (1970); Reed v. State, 7 Md. App. 200, 203, 253 A.2d 774 (1969); Price v. State, 3 Md. App. 155, 159, 238 A.2d 275 (1968); Tender v. State, 2 Md. App. 692, 698, 237 A.2d 65 (1968); Boone v. State, 2 Md. App. 80, 114, 233 A.2d 476 (1967). The better view, we believe, is the one adopted by the Court of Special Appeals in the instant case, by the majority of other jurisdictions, and by Professor Perkins, that failure to consummate the crime is not an indispensable element of criminal attempt.
From such evidence it was reasonable to infer, as the jury and the trial justice obviously did, that defendant entered the building with intent to commit larceny therein. As the court said in Reed v. State, 7 Md. App. 200, 203-04, 253 A.2d 774, 776: "* * * finding the requisite intent to steal is never a precise process, for intention is subjective and it must therefore be inferred from the circumstances of the case, if it is found at all.
Having been convicted of committing robbery with a deadly weapon, the appellants cannot be found to have failed to commit it, which is a necessary ingredient in the proof of the attempt. 2 Md. App. at 698, 237 A.2d at 69 (Citations omitted) (Emphasis supplied); see also Price v. State, 3 Md. App. 155, 159, 238 A.2d 275, 277 (1968) ("Having been convicted of committing robbery with a deadly weapon, the appellants cannot be found to have failed to have commit it, which is a necessary ingredient in the proof of attempt"); Reed v. State, 7 Md. App. 200, 203, 253 A.2d 774, 776 (1969) ("An attempt to commit a crime consists of an intention to commit it, the performance of some act towards its commission and the failure to consummate the offense"); Wiggins v. State, 8 Md. App. 598, 604, 261 A.2d 503, 507 (1970) ("An attempt to commit a crime is an act done in pursuance of a criminal intent falling short of the actual commission of the crime"). In McDuffie v. State, 12 Md. App. 264, 278 A.2d 307 (1971), the pedigree continued to grow:
The court denied the motion. Appellant contends, relying on Felkner v. State, 218 Md. 300, 307, 146 A.2d 424 (1958) and Reed v. State, 7 Md. App. 200, 204, 253 A.2d 774 (1969), that the State did not produce sufficient evidence from which the jury could find an intent to steal. Aside from the noting that the proof in this case was, at most, that a "mere breaking" had occurred, without injury, appellant does not attempt to argue the ground advanced by counsel below, i.e., that the proof of a completed act prohibits conviction of an attempt to commit that act.
236 N.E.2d at 571. See also, Easton v. State, 248 Ind. 338, 228 N.E.2d 6 (1967); Reed v. State, 7 Md. App. 200, 253 A.2d 774 (1969); State v. Rood, 11 Ariz. App. 102, 462 P.2d 399 (Ct.App. 1969); Hutton v. People, 177 Colo. 448, 494 P.2d 822 (1972). The convictions are reversed and defendant is discharged.
An attempt to commit a crime is an act done in pursuance of a criminal intent falling short of the actual commission of the crime, coupled, at least, with the apparent ability to commit the crime intended. Reed v. State, 7 Md. App. 200; Makins v. State, 6 Md. App. 466; Boone v. State, 2 Md. App. 80. So attempted robbery may be predicated upon a finding of intent to steal goods from the person of another by violence but without the consummation of the larceny. See Thompson v. State, 5 Md. App. 191.