
    McGRAW v. STATE
    [No. 266,
    September Term, 1963.]
    
      
      Decided April 3, 1964.
    
    
      The cause was argued before Henderson, Hammond, Horney, Marbury and Sybert, JJ.
    
      Charles C. Futterer for the appellant.
    
      Robert L. Karwacki, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Leonard T. Kardy, State’s Attorney for Montgomery County, and James J. Cromwell, Assistant State’s Attorney, on the brief, for the appellee.
   Henderson, J.,

delivered the opinion of the Court.

The appellant was convicted on the first count of an indictment charging him with feloniously committing “burglary of the dwelling house, to wit, Christ Congregational Church, owned and occupied by Christ Congregational Church, Incorporated, a corporation * * *.” The proof showed that the appellant had broken and entered the church in the night time and attempted to remove therefrom a safe in the pastor’s office containing a considerable sum of money. The church was not lived in or connected to any dwelling house. Entrance had been gained by breaking a window. The appellant, when arrested, readily admitted his entry and attempt to remove the safe.

The appellant contends that there is no crime of common law burglary of a church, and that since proof of breaking and entering a church in the night time does not establish the offense of common law burglary, there is a fatal variance. Code (1957), Art. 27, sec. 29, does not attempt to define the term “burglary” but merely fixes the penalty. Bowser v. State, 136 Md. 342, 346. Nor is there anything in the statutes dealing with breaking and entering in the daytime, or into enumerated structures, at variance with the common law crime. Thus, the question before us concerns the common law. Since we have no prior decision on the point, we must look to the common law of England. In State v. Buchanan, 5 H. & J. 317, 358 (1821), Judge Buchanan, for the Court, noted that the statement in our Declaration of Rights (then Article 3, now Article 5) that “the Inhabitants of Maryland are entitled to the Common Law of England * * *” had reference to the “common law in mass, as it existed here, either potentially, or practically, and as it prevailed in England at the time, except such portions of it as are inconsistent with the spirit of that instrument, and the nature of our new political institutions.” He went on to say that no part should be excluded “merely because it had not been introduced and used in the courts here,” and that decisions in England subsequent to the separation must be “received as expositions of the law as it before existed, and not as creating a new law, or altering the old one, which could only be done by legislative enactment. * * * Precedents therefore do not constitute the common law but serve only to illustrate principles.” See also Knee v. Baltimore Passenger Ry. Co., 87 Md. 623, 624 and Turner v. Wash. San. Com., 221 Md. 494, 503.

The oldest case on the subject seems to be Anon, 1 Dyer 99a (1553), Easter Term, 1 Queen Mary reported in 73 Eng. Rep., Reprint 216, where the indictment read: “burglariously breaking open a church by night to steal the goods of the parishioners.” “And Bromely held clearly that this is burglary; but he said it ought to be broke and entered.” In 79 Eng. Rep. Reprint 1160 and 1169 (Popham, 36 Eliz.) it is reported that on two occasions all the Justices resolved that it was burglary to break and enter a church. Coke was Attorney General at the time. A burglary indictment involving a church was sustained in Regina v. Nicholas, 1 Cox C.C. 218 (1845), and in Regina v. Baker, 3 Cox C.C. 581 (1849), Alderson B. said: “I take it to be settled law that burglary may be committed in a church at common law.” The writers agree.

Lord Coke in his third institute (1817 ed.) p. 64 says: “If a man do break and enter a church in the night, of intent to steal * * * this is burglary, for ecclesia est domus mansionalis omnipotentis Dei.” Lord Hale in his Pleas of the Crown (1st Am. ed. 1847), 556, remarked that this was “only a quaint turn,” and noted that “the breaking of churches, the walls or the gates of a city is also burglary, and the word mansionalis is only applicable to one kind of burglary, viz., the breaking of a private-house, in which case it must be a dwelling-house.” In 4 Blackstone, Commentaries (Christian ed.), 224, the learned author cites Coke, but relies on the statement in 1 Hawkins, P.C. 133. See particularly Britton (Nichols trans. 1901), 36 (originally published in the early 14th century). See also 2 East, P.C. (1806), 491; 1 Russell, Crimes and Misdemeanors (7th Am. ed.), 785; Bishop, Commentaries (5th ed.), § 106; Hochheimer, Criminal Law (2d ed.), § 276; Clark & Marshall, Crimes (5th ed.), § 406; 2 Pollock & Maitland, History of English Law (2d ed.), pp. 492-93; 12 C.J.S., Burglary, § 25; 9 Am. Jur., Burglary, § 20.

American cases seem to be few, but see People v. Richards, 15 N. E. 371 (N. Y.), for a clear recognition of the common law rule. See also Wilson v. State, 34 Ohio 199, and Trevino v. State, 254 S. W. 2d 786 (Tex. Crim. App.). In 2 Wharton, Criminal Law (12th ed.), § 996, the author says: “It has been said that a church edifice may be the subject of burglary at common law [citing authorities]; but this has been doubted [citing 1 Hawkins, supra, and People v. Richards, supra].We venture to comment that the only doubt expressed has been as to the reason for the rule. We have found no authority denying that the rule existed at common law.

On the point of variance we think the allegation regarding the church was sufficiently definite to apprise the accused of the offense with which he was charged, and prevent another prosecution for the same offense. Cf. Hutson v. State, 202 Md. 333, 338, and Leet v. State, 203 Md. 285, 289. The reference to “dwelling house” may be regarded as surplusage. It is not incumbent upon the State to prove averments not necessary to a statement of the crime charged. In any event, the ambiguity, if any, should have been resolved through pretrial procedure under Rule 725 (b).

Finally, the appellant contends that he was prejudiced by a reference in the charge to the jury, wherein the trial court referred to the reason for the rule as stated by Ford Coke “in his ‘quaint way’ as it is said.” He argues that a reference to the “dwelling house of Almighty God” contravenes the Fourteenth Amendment, citing Torcaso v. Watkins, 367 U. S. 488, Engel v. Vitale, 370 U. S. 421, and Abington School Dist. v. Schempp, 374 U. S. 203. We find nothing in the cases cited to prevent counsel, or the Court, from discussing the point at issue or its historical origin, whether this involved a reference to God or not. The appellant’s argument that the “theory that a church is the dwelling house of God * * * cannot be presented in our courts without violating constitutional principles” is, we think wholly without merit.

Judgment affirmed.  