STATE of North Carolina
v.
Albert R. SHORE and Bobby Ray Kennedy.
Nos. 7021SC531, 7021SC533.
Court of Appeals of North Carolina.
December 16, 1970. Certiorari Denied March 3, 1971.*24 Atty. Gen. Robert Morgan and Asst. Attys. Gen. Charles M. Hensey and Claude W. Harris, for the State.
John M. Harrington, Hudson, Petree, Stockton, Stockton & Robinson, Winston-Salem, for defendant appellant Albert Ray Shore and J. Clifton Harper, Harper & Tisdale, Winston-Salem, for defendant appellant Bobby Ray Kennedy.
Certiorari Denied by Supreme Court March 3, 1971.
BRITT, Judge.
The statute under which defendants were prosecuted is G.S. § 14-55 which provides:
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 any felony or larceny therein; or shall be found having in his possession, without lawful excuse, any picklock, key, bit, or other implement of housebreaking; or shall be found in any such building, with intent to commit any felony or larceny 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.
This statute defines three separate offenses, State v. Morgan, 268 N.C. 214, 219, 150 S.E.2d 377 (1966), and the one we are concerned with here is the second defined offense which has to do with the possession of an implement of housebreaking without lawful excuse. State v. Boyd, 223 N.C. 79, 83, 25 S.E.2d 456 (1943). The burden is on the State to show (1) that the person charged was found having in his possession an implement or implements of housebreaking and (2) that such possession was without lawful excuse. State v. Styles, 3 N.C.App. 204, 164 S.E.2d 412 (1968).
The State's evidence, viewed in the light most favorable to it, tends to show that defendants parked their vehicle on South Main Street in Winston-Salem at 4:30 A.M.; that defendant Shore left the vehicle and proceeded to the Gant Service Station and there with the aid of a bolt cutter broke into a cigarette machine and stole an amount of change after which he returned to the vehicle; and shortly thereafter the two defendants were apprehended with the bolt cutter and other implements set forth in the indictment, together with some $26.95 in change, in their possession.
Defendants contend the State's evidence was insufficient to permit a jury to find that one or more of the tools in their possession were "implements of housebreaking". It is conceded that the items possessed are not specifically named in G. S. § 14-55, so if their possession without lawful excuse is proscribed at all it is under the general language of the statute. State v. Morgan, supra. The State's evidence tending to show that at 4:30 A.M. the bolt cutter was in the possession of defendants while they were in close proximity to the machine that was broken into; that the metal band around the cigarette machine had been cut by some implement; and that shortly before an officer had observed that the band was intact, was sufficient to show that the bolt cutter, although a tool that is normally lawful to possess, was capable of and was being used as an "implement of housebreaking" within the meaning of the statute. We do not hold here that a cigarette machine is a "structure designed to secure property" so as to fall within the *25 meaning of G.S. § 14-54, but we believe that the possession of the implement with intent to burglarize and not the character of the object (be it a house or vending machine) of the burglary brings the act within the condemnation of the statute. It is reasonable to perceive that a burglar with a bolt cutter, on the prowl to steal that which belongs to others, would clip a padlock and enter and steal from a service station building as readily as he would clip a metal band securing a vending machine and steal its contents. We hold that the State's evidence was sufficient to allow the jury to find that the bolt cutter was possessed under the circumstances shown in this case, as an "implement of housebreaking".
The second element of the State's case has to do with proving that the tools in question were possessed "without lawful excuse". Defendant Kennedy introduced evidence that indicated he had a colorably lawful reason to possess the tools that were found at the scene of the arrest; however, the State introduced strong evidence indicating that the possession was unlawful. The State's evidence tended to show that defendants were on South Main Street at 4:30 in the morning and had the intention of stealing; that the bolt cutter was being held by one of the defendants immediately before and during the course of his arrest and no explanation was given as to what it had been used for that night. A more proper place for the bolt cutter if possessed for lawful purposes, or at least one that was less suspicious, would have been in the trunk of the car. The evidence as to whether the possession was lawful, being in conflict, was for the jury to decide and a nonsuit would have been improper, 2 N.C. Index 2d, Criminal Law, Sec. 104. The conduct of the defendants and the circumstances under which they were in possession of the bolt cutter raised the inference that its possession was for an unlawful purpose.
We hold that the defendants had a fair trial free from prejudicial error and the sentences imposed were within the limits prescribed by statute.
No error.
CAMPBELL and HEDRICK, JJ., concur.