State v. Davis

| N.C. | Dec 12, 1956

Denny, J.

The most serious question on this appeal is whether or not we should sustain the defendant’s assignments of error based on exceptions duly entered to the refusal of the court below to allow his motion for judgment as of nonsuit interposed at the close of the State’s evidence and renewed at the close of all the evidence.

The indictment upon which the defendant was tried and convicted was based on the provisions of G.S. 14-55, which read as follows: “If any person shall be found armed with any dangerous or offensive weapon, with the intent to break or enter a dwelling, or other building whatsoever, and to commit a felony or other infamous crime therein; or shall be found having in his possession, without lawful excuse, any pick-lock, key, bit or other implement of housebreaking; or shall be found in any such building, with intent to commit a felony or other infamous crime therein, such person shall be guilty of a felony and punished by fine or imprisonment in the State’s prison, or both, in the discretion of the court.”

The State is relying upon the cases of S. v. Vick, 213 N.C. 235" court="N.C." date_filed="1938-03-23" href="https://app.midpage.ai/document/state-v--vick-3663835?utm_source=webapp" opinion_id="3663835">213 N.C. 235, 195 S.E. 779, and S. v. Baldwin, 226 N.C. 295" court="N.C." date_filed="1946-05-01" href="https://app.midpage.ai/document/state-v--baldwin-3656156?utm_source=webapp" opinion_id="3656156">226 N.C. 295, 37 S.E. 2d 898, to sustain the verdict below. On the other hand, the defendant is relying upon the case of S. v. Boyd & Wilborn, 223 N.C. 79, 25 S.E. 2d 456, for a reversal thereof.

In the case of S. v. Vick, supra, the indictment charged that the defendant did unlawfully, wilfully, and feloniously, without lawful excuse, have in his possession certain pick-locks, keys, bits, hammers, crowbars, nitroglycerin, dynamite caps, fuses, drills, soap, shotguns, rifles, axes and other implements for housebreaking contrary to the form of the statute. About 4:00 o’clock on a morning in May 1935, officers of Nash County were searching for one Alfred Denton, an escaped convict. They went to the home of one Bottoms at Gold Valley and waited. They saw an automobile approach Bottoms’ home and drove out to meet it with their lights off. When the officers got within 150 or 200 yards of the approaching automobile they turned their lights on. Denton was driving the approaching car and attempted to turn around. In doing so he cut the wheels in a ditch and the car was unable to move. The officers recognized this defendant in the car with Denton. As the officers approached the car Denton opened fire with a pistol. The defendant picked up a riñe and shot at them from the rear seat. The officers returned the fire. Whereupon Denton and Vick got out of the car and escaped, using their car as a shield, but were apprehended later.

The defendant made no contention that the articles found in the possession of Denton and the defendant were not implements of housebreaking. His defense was bottomed entirely on an alibi. He was convicted and appealed to this Court, which found no error in the trial below. In disposing of the appeal, this Court, speaking through Barn-hill, J. (later C. J.), said: “There are many facts of which the court may take judicial notice, and they should take notice of whatever is, or ought to be, generally known within the limits of their jurisdiction, for justice does not require that courts profess to be more ignorant than the rest of mankind. 15 R.C.L., 1057. It is not unusual for the court to take judicial notice that certain weapons not specifically described in the statute are deadly weapons. They likewise take notice of other like generally known facts. While each of the articles found in the possession of the defendant has its legitimate use, it cannot be said that taken in combination these articles are tools of any legitimate trade or calling. There is no legitimate purpose for which this defendant and his companion could have the combination of articles found in their possession. On the other hand, taken in combination, they are the instruments and tools usually possessed and used by housebreakers.”

In S. v. Baldwin, supra, the bill of indictment charged the defendant “unlawfully, wilfully and feloniously was found armed with and having in his possession without lawful excuse certain dangerous and offensive weapons, to wit: One 18" Stillson wrench, one brace #4310, one %" drill, one %6" drill, one %6" drill, one drill, five detonating caps, two flashlight batteries Ray O Vac, one burgess super service battery, 2" cell, one pair brown gloves, one way pack pickle jar containing two sticks of dynamite, four .32 calibre bullets, one drill chuck key, one bottle containing paregoric and other implements of dangerous and offensive nature fitted and designed for use in burglary or other house-breakings or for the use in burglary with explosives with intent to so use said implements for the purpose of unlawfully and feloniously breaking and entering a dwelling or other building against the form of the statute in such case made and provided . . .” (Emphasis added.) The second count charged that the defendant had in his possession, without lawful excuse, the articles enumerated in the first count in the bill. At the close of all the evidence, the State took a voluntary nonsuit on the first count which charged the defendant with having such tools and other implements “wdth intent to so use said implements for the purpose of unlawfully and feloniously breaking and entering a dwelling or other building.”

In the case of S. v. Boyd, supra, the implements found in the possession of the defendants were enumerated in the bill of indictment as follows: “3 pistols with cartridges for same, bolt clippers, wrecking bar, two big screwdrivers, 2 pairs of gloves and flashlights, blackjack, brace and bit, and pliers or nippers and other implements of dangerous and offensive nature fitted and designed for use in burglary or other housebreaking or for use in burglary with explosives.”

The Highway Patrolman who arrested the defendants testified that when he stopped them, Wilborn said, in the presence and hearing of Boyd, that “they had that stuff in there for their protection”; that “they had been stopped with some liquor and had some liquor taken from them.” On cross-examination, the Patrolman continued: “The bolt clippers are what is known as a bolt clipper or cutter, is used for cutting bolts, are part of a mechanic’s tools — you can use them to cut most anything — they are used around a garage . . . The brace and bit is a common tool of the carpenter, I would say . . . The screwdriver you see in every garage and in homes, that is a very common tool ... I believe the wrecking bar is an ordinary wrecking bar' — nothing unusual about it ... a lot of mechanics have them and use them . . . This little screwdriver is an ordinary screwdriver . . .You can buy them anywhere, and the same thing about the pliers — they are used around garages and filling stations, and carpenters and electricians use them— everyone should have flashlights. . . . Mr. Wilborn told me that he had the pistol for protection' — that he had some liquor taken off of him . . . Mr. Boyd said that he was just riding with him as a passenger. Mr. Wilborn said he was a mechanic. That was what he said that he had followed the trade of a mechanic for a long number of years and these were his tools.”

On the present appeal, the defendants are not charged with possessing a single item or tool enumerated in G.S. 14-55. In fact, the indictment enumerates a crowbar, which is an ordinary tool, according to the State’s evidence, used by carpenters and mechanics, and an ordinary hack saw that may be purchased in any hardware store in the State. However, if the State had been in a position to indict and prove that these defendants had possession of these tools, “with intent to so use said implements for the purpose of unlawfully and feloniously breaking and entering a dwelling or other building,” we would have an entirely different question for consideration and determination. But the State expressly negatives any knowledge or proof of any such intent and purpose on the part of the defendants. Moreover, there is no contention on the part of the State that the crowbar or hack saw is an implement designed for the purpose of housebreaking, or that in combination they may not be used for legitimate purposes.

In the last cited case, Winborne, J. (now C. J.), pointed out that under the English cases, . . when a person is charged with possession of an implement of housebreaking, the burden of proving lawful excuse is on the person so charged, that burden is discharged by the accused if he prove that the alleged implement of housebreaking, capable of being used for that purpose, is a tool used by him in his trade or calling.” He further said, “The phrase 'without lawful excuse’ must be construed in the spirit of the statute. And, even though the possession of the pistols and blackjack be unlawful, and even though the defendants possessed the pistols and blackj ack for the purpose of personal protection in the unlawful transportation of intoxicating liquor, in accordance with statement of defendant Wilborn, such possession is not within the meaning of the statute in question.” The judgment of the Superior Court was reversed as to both defendants.

The above cited cases, however, do not relieve the State of the burden of showing beyond a reasonable doubt that the possession of the tools enumerated in the bill of indictment was without lawful excuse.

While the record of this 17-year-old defendant is bad for housebreaking, his intent and purpose in having possession of the enumerated tools and pistol constituted no part of the crime charged in the bill of indictment upon which he was tried. The sole question for the determination of the jury was simply this: Did the defendants have possession of these tools without lawful excuse?

We have reached the conclusion that the State failed to offer sufficient evidence to sustain the verdict from which the defendant McCall appeals. His motion for judgment as of nonsuit should have been sustained.

The judgment of the Superior Court against the defendant James E. McCall is

Reversed.

JOHNSON, J., not sitting.