#### STATE v. MARK HARVEY BOYD and MOFFITT DOTSON WILBORN.

(Filed 28 April, 1943.)

1. Criminal Law § 52b—

Upon a motion for nonsuit under O. S., 4643, if there be any evidence tending to prove the fact in issue or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, the case should be submitted to the jury. But where there is merely a suspicion or conjecture in regard to the charge in the bill of indictment, the motion should be allowed.

2. Same—

Where a complete defense is established by the State’s case, on a criminal indictment, the defendant should be allowed to avail himself of a motion for nonsuit under C. S., 4643.

3. Burglary and Unlawful Breaking §§ le, 7—

Upon indictment under C. S., 4236, the burden is upon the State to show: (1) that the person charged was found having in his possession an implement or implements of housebreaking enumerated in, or which come within the meaning of the statute; and (2) that such ’ possession was without lawful excuse.

4. Burglary and Unlawful Breaking § 9—

In the trial of an indictment for the possession of implements of housebreaking, where the State’s evidence fails to show that any of the implements were for the express purpose of housebreaking and fails to show that any of them were implements enumerated in the statute, C. S., 4236, except perhaps a “bit,” and shows that all of the tools or implements, except pistols, were in common use in lawful and ordinary occupations, without any circumstances inferring that the implements were for bur-glarious purposes, there is no evidence to support a verdict of guilty and motion of nonsuit should have been granted.

Appeal by defendants from *Dixon, Special Judge,*at October Term, 1942, of EbaNicliN.

Criminal prosecution charging defendants with having in their joint possession, without lawful excuse, certain implements of burglary. C. S., 4236.

The implements, in possession of which defendants are charged to have been found in Franklin County, enumerated in the bill of indict*80ments are: “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.”

Upon the trial in Superior Court evidence offered by the State through the witnesses, State Highway Patrolman M. H. Rynum and one S. T. Denton, tends to show these facts: “Around” twelve o’clock on the night of 16 April, 1942, Patrolman Bynum, acting in his official capacity, and accompanied by Denton, seeing two cars, a Pontiac and a ’41 Plymouth, “parked just beyond the monument on Main Street in Louisburg,” “came on back down the street and pulled into a service station to wait for them to come by. They came by pretty soon.” The patrolman “checked the Pontiac” as it went out Nash Street, and found that it was occupied, and being driven by “a fellow Lassiter.” Then the patrolman “went to check the ’41 Plymouth.” It “had come on down in front of the Big Apple Cafe,” and the patrolman “touched the siren and they pulled up along there at the Big Apple.” Defendant Wilborn was driving the car, and defendant Boyd was on the right front seat of it. No one else was in the car. This was not over ten minutes after the cars were seen near the monument. When the patrolman came up to the car he asked Wilborn if he objected to his car being searched, to which Wilborn “said he did not,” and got out of the car. Whereupon, the patrolman, upon looking in the back of the car, found about a quart of whiskey on the floor back of Wilborn, and, picking- up his overcoat, found a pistol in it. The patrolman then arrested Wilborn. At that time the sheriff, having heard the siren, had “walked out there.” Then the patrolman had Boyd to get out of the car, and, finding in “the glove compartment” “a flashlight and another pistol and a blackjack” he “put them both under arrest,” walked with them to, and put them in jail. Denton, following closely, drove the car to the jail. Up to that time the officer had found only the whiskey, flashlight, two pistols and blackjack, as above stated. But after defendants were locked up, the officers gave “the car a thorough check.” The back seat cushion was out. In the car they found these articles, in addition to those above enumerated: “a bolt cutter . . . under the mat ... on the floor, under boot in the trunk,” “a large screwdriver in the trunk”; “wrecking bar ... in the boot”; “brace and bit”; “one pistol . . . kind of rusty ... in the boot '. . . behind the tire ... it was loaded”; “a pair of pliers and screwdriver in the boot”; a “straw hat,” and a “slicker hat”; two pairs of gloves, one in the glove compartment and the other on the floor in the back; another flashlight “in the seat”; and a “fan belt in the trunk.” (Each of these articles was- introduced in evidence as exhibits.)

*81Tbe patrolman testified tbat when be stopped tbe defendants, Wilborn said, in tbe presence and witbin tbe bearing of Boyd, tbat “they bad tbat stuff in there for tbeir protection”; tbat “tbey bad been stopped with some liquor and bad some liquor taken from them”; tbat “tbey carried tbe gun for bis own protection”; tbat, on being asked what tbey were doing down there, “Wilborn said be bad started to Rocky Mount to get a load of liquor”; tbat, in reply to question of patrolman as to “why be didn’t go down 301, it was so much nearer,” Wilborn “said be wanted to see a man in Henderson, so be came there”; and tbat, on being asked who tbe man was in tbe other car, Wilborn “said be didn’t know him— just happened to run up together and tbey were both lost,” but tbat “when some officers from Virginia came. down and ’ questioned them about it” “tbey later told me who be was.”

And on cross-examination, in pertinent part, tbe patrolman continued: “Mr. Boyd said be did not know anything about any of it, said be was just riding . . . Tbey didn’t make any effort to get away or make any objection to me searching tbe car or make any motion tbat I would construe as an attempt to get away . . . Tbe 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 — tbey are used around a garage . . . Tbe brace and bit is a common tool of tbe carpenter, I would say so . . . Tbe screwdriver you see in every garage and in homes, tbat is a very common tool ... I believe tbe 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 tbe same thing about tbe pliers — tbey are used around garages and filling stations, and carpenters and electricians use them — everyone should have flashlights. I do not recall tbat tbe glove compartment was difficult to open. I mashed tbe button and ... it came open very easy . . . Mr. Wilborn told me tbat be bad tbe pistol for protection- — -tbat be bad some liquor taken off of him . . . Mr. Boyd said tbat be was just riding witb him as a passenger. Mr. Wilborn said be was a mechanic. Tbat was what be said tbat be bad followed tbe trade of a mechanic for a long number of years and these were bis tools ... I didn’t find among these tools any sawed-off shotguns, or any extra ammunition for tbe pistols, or any nitroglycerin or any ammonia, any butcher kuife, any chisels, drill punches, soap, wire or rope, eye-droppers, dynamite caps or fuses, sledgehammers, breast drill, drill bits. No, sir, I didn’t find any of tbe articles you have called over.” And on re-direct examination tbe Patrolman said: “I did not find any machine guns ... 75 MM cannons . . . any shotguns.”

*82The testimony of S. T. Denton, as contained in the record, is, in the main, in corroboration of the patrolman in identifying the articles found in the ear.

When the State rested its case, defendants and each of them moved for judgment as of nonsuit. C. S., 4643. The motion was denied and defendants excepted.

Yerdict: Guilty as charged in the bill of indictment.

Judgment: As to defendant Moffitt Dotson Wilborn: Confinement in State’s Prison at Ealeigh for a period of not less than 10 nor more than 12 years. As to defendant Mark Harvey Boyd: Confinement in State’s Prison at Ealeigh for a period of not less than 7 nor more than 10 years.

Though indicted in the same bill and tried together, defendants separately appeal to the Supreme Court and bring up separate records, identical in all respects except as to judgment, and separately assign error.

*Attorney-General McMullan and Assistant Attorneys-Generad Patton and Rhodes for the State.*

*Yarborough & Yarborough for defendants Boyd and Wilborn, appellants.*

WiNBORNE, J.

Defendants, in the main, stress for error, and properly so, the refusal of the court to grant their motions under C. S., 4643, for judgment of nonsuit.

In considering motion for judgment of nonsuit under C. S., 4643, the general rule as stated in *S. v. Johnson,*199 N. C., 429, 154 S. E., 730, and in numerous other decisions of this Court, is that “if there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury.” But where there is merely a suspicion or conjecture in regard to the charge in the bill of indictment against defendant, the motion for judgment of nonsuit will be allowed. *S. v. Johnson, supra,*and cases cited. See *S. v. Stephenson,*218 N. C., 258, 10 S. E. (2d), 819; and also *S. v. Vinson,*63 N. C., 335; *S. v. Sigmon,*190 N. C., 684, 130 S. E., 854; *S. v. Montague,*195 N. C., 20,’ 141 S. E., 285; *S. v. Madden,*212 N. C., 56, 192 S. E., 859; *S. v. Shelnuti,*217 N. C., 274, 7 S. E. (2d), 561; *S. v. Todd,*222 N. C., 346, 23 S. E. (2d), 47; *S. v. Goodman,*220 N. C., 250, 17 S. E. (2d), 8; *S. v. Penry,*220. N. C., 248, 17 S. E. (2d), 4.

Also, on a motion for judgment as of nonsuit, under C. S., 4643, the, rule is, as stated in *S. v. Fulcher,*184 N. C., 663, 113 S. E., 769, “that where a complete defense is established by the State’s case, a defendant should be allowed to avail himself of such defense.” See also *S. v. Med*
      *83
      *den,*187 N. C., 803, 123 S. E., 65; *S. v. Gohoon,*206 N. C., 388, 174 S. E., 91; *S. v. Todd, supra.*

In tbe *Todd case, supra,*applying tbis principle to an alleged confession of defendant, offered in evidence by tbe State, *Devin, J.,*said: “While tbe State by offering tbis statement was not precluded from showing that tbe facts were different, no snob evidence was offered, and tbe State’s ease was made to rest entirely on tbe statement of tbe defendant, which tbe State presented as worthy of belief,” citing cases.

defendants are indicted under that portion of tbe statute, O. S., 4236, which prescribes that “if ány person . . . shall be found having in bis possession, without lawful excuse, any pick-lock, key, bit or other implement of housebreaking . . . 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, significant to note, is patterned after the English statute known as the Larceny Act, 1861, 24 and 25 Yict., chapter 96, see. 58, which is more condensed in expression than a prior English statute, 5 Geo. 4, chapter 83, sec. 4, as quoted in Chitty on Criminal Law (1832), Yol. Ill, p. 1116, and in pertinent part prescribes that: “Everyone . . . who is found by night having in his possession without lawful excuse (the proof of which excuse lies on such person) any pick-lock, key, crow, jack, bit, or other implement of housebreaking shall be guilty of a misdemeanor;” And in this connection it is noted that in the case of *S. v. Dozier,*73 N. C., 117, at June Term, 1875, a case in which the Court then said that breaking and entering a storehouse, with intent to steal the goods and chattels therein, is not a criminal offense at common law or by statute in this State, *Bynum, J.,*directed attention to the above English statute. Thereafter, a statute was incorporated in the Code of North Carolina, adopted in 1883, sec. 997, which in pertinent part reads: “If any person . . . shall be found by night having in his possession, without lawful excuse, any pick-lock, key, bit or other implement of housebreaking . . . shall be guilty of an infamous crime,” etc. Thus it appears that the statute so adopted in this State is in almost the same words as the English statute except that the clause “the proof of which excuse lies on such person,” contained in the English statute, was deleted. It is manifest and significant, therefrom, that the General Assembly did not intend that this clause should apply in this State. And the statute, unchanged in wording, was brought forward in the Revisal of 1905, as section 3334, which was amended in 1907 by striking out the words “by night.” Public Laws 1907, chapter 822, see. 1. As so amended it is now the statute under which defendants are indicted. O. S., 4236. In the light of the foregoing it is clear that in this State, under this statute, the gravamen of the offense is the possession of burglar’s tools without *84lawful excuse, *S. v. Vick,*213 N. C., 235, 195 S. E., 779, and the burden is on the State to show two things: (1) That the person charged was found having in his possession an implement or implements of housebreaking enumerated in, or which come within the meaning of the statute; and (2) that such possession was without lawful excuse.

In this connection it is noted that the English courts, treating of cases relating to this phase of the statute, seem to hold that although an implement be used in the ordinary affairs of life for lawful purposes, it is to be considered an implement of burglary within the meaning of the .Act (1) if it be capable of being used for the purpose of housebreaking, and (2) if, at the time and placed alleged, the person charged had it in possession for that purpose. And, further, although under the English rule 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. See 9 Halsbury’s Laws of England, Part XIII, on Criminal Law and Procedure, section 1353; and The English and Empire Digest Supplement 1940, Vol. 14, page 108, Nos. 10727, 10729 (a); and Vol. 15, page 960, Part XXXIV, section 13.

Also, in the case of *S. v. Ferrone,*97 Conn., 258, 116 A., 336, it appears that in the State of Connecticut there is a statute in almost exact wording of the pertinent section of the English Larceny Act, including the clause as to proof of excuse being upon the accused, which is herein-above quoted. In that case the Supreme Court of Errors of Connecticut, speaking of, and approving the charge of the trial court, as a clear and accurate construction of the statute, has this to say: “ An instrument of housebreaking,’ said the Court, ‘may be such from its essential nature, that is, it may be one which is made and designed for the express purpose of housebreaking.’ Or, it ‘may be one which is such temporarily and for a particular purpose, and whether such or not would depend upon two considerations: “First, is it one that is reasonably adapted for use in housebreaking; and, second, was it at the time intended or actually used for that purpose ?” ’ ”

In the light of the similarity in wording of the English and Connecticut statutes to that in this State, C. S., 4236, the construction so made and applied by the English and Connecticut courts, as above indicated, is convincing and appropriate in considering the case in hand.

Therefore, applying these principles to the facts in the present case, we are of opinion that the State has failed to offer evidence sufficient to support a verdict of guilty. The evidence fails to show that any of the articles found in the automobile was an implement made and designed for the express purpose of housebreaking. It fails to show that any of *85them were implements enumerated particularly in tbe statute, except perhaps tbe “bit.” It fails to sbow tbat any of tbe implements were reasonably adapted for use in housebreaking, or tbat they were tbe kind of implements used by burglars. On tbe contrary, tbe evidence for tbe State tends to show tbat each of tbe articles, including tbe “bit,” so found, except tbe pistols, and blackjack, is a tool or instrument in common use in lawful occupations, and in tbe ordinary affairs of life. Moreover, tbe evidence fails to sbow facts and circumstances from which it may be inferred tbat at tbe time and place in question defendants possessed tbe implements, singly or in combination, as burglar’s tools or for tbe purpose of housebreaking.

Tbe phrase “without lawful excuse” must be construed in tbe spirit of tbe statute. And, even though tbe possession of tbe pistols and blackjack be unlawful, and even though tbe defendants possessed tbe pistols and blackjack for tbe purpose of personal protection in tbe unlawful transportation of intoxicating liquor, in accordance with statement of defendant Wilborn, such possession is not within tbe meaning of tbe statute in question.

This case is distinguishable from *S. v. Vide, supra,*where defendant was charged with having in possession certain implements of burglary. Though it is there stated tbat “tbe particular section of tbe statute under which defendant was being tried does not require tbe proof of any ‘intent’ or ‘unlawful use,’ ” it must be borne in mind tbat there “tbe defendant made no contention tbat tbe tools found in tbe possession of Denton and tbe other occupants of tbe car were not implements of housebreaking.” Therefore, tbe rule there stated must be read in tbe light of tbe facts in tbat case. “Tbe law discussed in any opinion is set within tbe framework of tbe facts of tbat particular case,” *Barnhill, J.,*in *Light Co. v. Moss,*220 N. C., 200, 17 S. E. (2d), 10. See also *S. v. Utley, ante,*39.

For the reasons stated, tbe judgment of Superior Court against each defendant is

Eeversed.