Scott v. State
91 Wis. 552
Wis.
1895
Check Treatment
PiNNey, J.

1. Ch. 63, Laws of 1893, provides that “ every person who shall knowingly have in his possession any engine, machine, tool or implement' adapted and designed for cutting through, forcing or breaking open any building, room, vault, safe or other depository in order to steal therefrom any money or property, knowing the same to be adapted and designed for the purposes aforesaid, with intent to use or employ the same for the purposes aforesaid, shall 'be, on conviction thereof, punished,” etc. The intent essential to constitute the off ensé is the intent to use or employ ■such implements or tools for the purpose of cutting through, forcing, or breaking open any building, room, vault, safe, or other depository, in order to steal therefrom any money or property; and this is clearly and plainly charged in the information in the very words of the statute. As the offense is a statutory one, the information thus charging it is sufficient. The intent specified in the statute is to accomplish a certain result in order or so that the accused may steal from any building, room, or • safe, etc., money, etc., and it was enough to allege possession of such tools, etc., with the intent specified and in the language of the statute. In Comm. v. Tivnon, 8 Gray, 375, 380, under a statute the same in terms as the present, it was held that “ the general intent was sufficient, and it was not necessary to allege or prove *556any intent to use the tools in a particular place, or for a particular purpose, or in any definite manner.” From the-very nature of the offense it would, in general, be impossible, to allege or show an intent to deprive any particular owner of his' property. The objection to the information was rightly overruled.

2. The court properly ruled that there-was evidence sufficient to require that the case-should be submitted to the jury, and for that reason denied the motion to discharge the defendant and direct an acquittal. In the ruling of the court upon the objections to the remarks of the district attorney, we think the trial judge committed a serious error, requiring a reversal of the judgment and a new trial. The statement of the district attorney in his 'closing argument was not by way of legitimate argument, but by assertion of a fact, stated quite explicitly, that the defendant was a thief, and that the two men who came to the city with him “ were ■just as big thieves as this defendant;” and, when objection-was made, he reiterated the charge, saying: “ I will take it back if it makes it any better, and say that I do not know as they are quite as big thieves als he is.” The bill of exceptions purports to contain all the evidence given on the trial, and we find nothing in the bill to warrant the assertion of the district attorney, which went to the jury with the-sanction of the opinion of the court in its favor, to the effect, that “ the remarks of the district attorney were warranted by the evidence.” There was no evidence that the defendant had ever been convicted, or had ever been guilty, of lar- „ ceny. Fie was on trial for having tools, implements, etc., in-his possession, in order to steal from buildings, rooms, safes, etc., such money or property as he might find therein, and with intent to unlawfully use and employ said tools for such purposes. Whether he had possession of them for that purpose and with that intent was a vital question, entirely for the jury upon the evidence. The fact that he had thorn se--*557cretecl in the legs of bis pants and in bis shoes was evidence from wbicb tbe jury might or might not infer the criminal purpose alleged. The repeated assertion of the district attorney that the defendant was a thief, followed by the ruling of the court that it was warranted by the evidence, ■could not but have exercised a decided influence upon the jury. The defendant was entitled to a trial upon the evidence produced, unaffected by the statement of extrinsic facts or extraneous considerations. The effect of the ruling in question was to impair that right, and to improperly and unfavorably affect his case before the jury. Eor this reason there must be a new trial.

By the Gourt.— The judgment of the municipal court is reversed, and the cause is remanded for a new trial. The keeper of the house of correction for Milwaukee county will deliver the defendant to the sheriff of Milwaukee county, who will receive and keep him in his custody until discharged therefrom by due course of law.