{ "id": 8599098, "name": "STATE v. MARK HARVEY BOYD and MOFFITT DOTSON WILBORN", "name_abbreviation": "State v. Boyd", "decision_date": "1943-04-28", "docket_number": "", "first_page": "79", "last_page": "85", "citations": [ { "type": "official", "cite": "223 N.C. 79" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "220 N. C., 200", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11300911 ], "opinion_index": 0, "case_paths": [ "/nc/220/0200-01" ] }, { "cite": "116 A., 336", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "97 Conn., 258", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 394742 ], "opinion_index": 0, "case_paths": [ "/conn/97/0258-01" ] }, { "cite": "195 S. E., 779", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "213 N. C., 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627453 ], "opinion_index": 0, "case_paths": [ "/nc/213/0235-01" ] }, { "cite": "73 N. C., 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8686244 ], "opinion_index": 0, "case_paths": [ "/nc/73/0117-01" ] }, { "cite": "174 S. E., 91", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "206 N. C., 388", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630548 ], "opinion_index": 0, "case_paths": [ "/nc/206/0388-01" ] }, { "cite": "123 S. E., 65", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "187 N. C., 803", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655180 ], "opinion_index": 0, "case_paths": [ "/nc/187/0803-01" ] }, { "cite": "113 S. E., 769", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "184 N. C., 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271981 ], "opinion_index": 0, "case_paths": [ "/nc/184/0663-01" ] }, { "cite": "220 N. C., 250", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11301461 ], "opinion_index": 0, "case_paths": [ "/nc/220/0250-01" ] }, { "cite": "222 N. C., 346", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630276 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/222/0346-01" ] }, { "cite": "217 N. C., 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8604592 ], "opinion_index": 0, "case_paths": [ "/nc/217/0274-01" ] }, { "cite": "192 S. E., 859", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "212 N. C., 56", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599244 ], "opinion_index": 0, "case_paths": [ "/nc/212/0056-01" ] }, { "cite": "141 S. E., 285", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "195 N. C., 20", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627536 ], "opinion_index": 0, "case_paths": [ "/nc/195/0020-01" ] }, { "cite": "130 S. E., 854", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "190 N. C., 684", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612738 ], "opinion_index": 0, "case_paths": [ "/nc/190/0684-01" ] }, { "cite": "63 N. C., 335", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277347 ], "opinion_index": 0, "case_paths": [ "/nc/63/0335-01" ] }, { "cite": "218 N. C., 258", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616782 ], "opinion_index": 0, "case_paths": [ "/nc/218/0258-01" ] }, { "cite": "154 S. E., 730", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "199 N. C., 429", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603127 ], "opinion_index": 0, "case_paths": [ "/nc/199/0429-01" ] } ], "analysis": { "cardinality": 853, "char_count": 18497, "ocr_confidence": 0.49, "pagerank": { "raw": 6.863172020683128e-07, "percentile": 0.9644475411500825 }, "sha256": "c6598b7656f4b1892e40c910c51b598e3fdb833afbbcd128ae7a251be514b60b", "simhash": "1:b40f0fea8220c430", "word_count": 3257 }, "last_updated": "2023-07-14T18:13:50.990749+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. MARK HARVEY BOYD and MOFFITT DOTSON WILBORN." ], "opinions": [ { "text": "WiNBORNE, J.\nDefendants, 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.\nIn 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 \u201cif 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.\u201d 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,\u2019 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.\nAlso, 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, \u201cthat where a complete defense is established by the State\u2019s case, a defendant should be allowed to avail himself of such defense.\u201d See also S. v. Med den, 187 N. C., 803, 123 S. E., 65; S. v. Gohoon, 206 N. C., 388, 174 S. E., 91; S. v. Todd, supra.\nIn tbe Todd case, supra, applying tbis principle to an alleged confession of defendant, offered in evidence by tbe State, Devin, J., said: \u201cWhile tbe State by offering tbis statement was not precluded from showing that tbe facts were different, no snob evidence was offered, and tbe State\u2019s ease was made to rest entirely on tbe statement of tbe defendant, which tbe State presented as worthy of belief,\u201d citing cases.\ndefendants are indicted under that portion of tbe statute, O. S., 4236, which prescribes that \u201cif \u00e1ny 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\u2019s Prison,- or both in the discretion of the court.\u201d\nThis 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: \u201cEveryone . . . 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;\u201d 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: \u201cIf 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,\u201d 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 \u201cthe proof of which excuse lies on such person,\u201d 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 \u201cby night.\u201d 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\u2019s tools without lawful 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.\nIn 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\u2019s 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.\nAlso, 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: \u201c An instrument of housebreaking,\u2019 said the Court, \u2018may be such from its essential nature, that is, it may be one which is made and designed for the express purpose of housebreaking.\u2019 Or, it \u2018may be one which is such temporarily and for a particular purpose, and whether such or not would depend upon two considerations: \u201cFirst, 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 ?\u201d \u2019 \u201d\nIn 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.\nTherefore, 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 them were implements enumerated particularly in tbe statute, except perhaps tbe \u201cbit.\u201d 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 \u201cbit,\u201d 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\u2019s tools or for tbe purpose of housebreaking.\nTbe phrase \u201cwithout lawful excuse\u201d 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.\nThis 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 \u201ctbe particular section of tbe statute under which defendant was being tried does not require tbe proof of any \u2018intent\u2019 or \u2018unlawful use,\u2019 \u201d it must be borne in mind tbat there \u201ctbe 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.\u201d Therefore, tbe rule there stated must be read in tbe light of tbe facts in tbat case. \u201cTbe law discussed in any opinion is set within tbe framework of tbe facts of tbat particular case,\u201d Barnhill, J., in Light Co. v. Moss, 220 N. C., 200, 17 S. E. (2d), 10. See also S. v. Utley, ante, 39.\nFor the reasons stated, tbe judgment of Superior Court against each defendant is\nEeversed.", "type": "majority", "author": "WiNBORNE, J." } ], "attorneys": [ "Attorney-General McMullan and Assistant Attorneys-Generad Patton and Rhodes for the State.", "Yarborough & Yarborough for defendants Boyd and Wilborn, appellants." ], "corrections": "", "head_matter": "STATE v. MARK HARVEY BOYD and MOFFITT DOTSON WILBORN.\n(Filed 28 April, 1943.)\n1. Criminal Law \u00a7 52b\u2014\nUpon 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.\n2. Same\u2014\nWhere a complete defense is established by the State\u2019s case, on a criminal indictment, the defendant should be allowed to avail himself of a motion for nonsuit under C. S., 4643.\n3. Burglary and Unlawful Breaking \u00a7\u00a7 le, 7\u2014\nUpon 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 \u2019 possession was without lawful excuse.\n4. Burglary and Unlawful Breaking \u00a7 9\u2014\nIn the trial of an indictment for the possession of implements of housebreaking, where the State\u2019s 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 \u201cbit,\u201d 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.\nAppeal by defendants from Dixon, Special Judge, at October Term, 1942, of EbaNicliN.\nCriminal prosecution charging defendants with having in their joint possession, without lawful excuse, certain implements of burglary. C. S., 4236.\nThe implements, in possession of which defendants are charged to have been found in Franklin County, enumerated in the bill of indictments are: \u201c3 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.\u201d\nUpon 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: \u201cAround\u201d twelve o\u2019clock 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 \u201941 Plymouth, \u201cparked just beyond the monument on Main Street in Louisburg,\u201d \u201ccame on back down the street and pulled into a service station to wait for them to come by. They came by pretty soon.\u201d The patrolman \u201cchecked the Pontiac\u201d as it went out Nash Street, and found that it was occupied, and being driven by \u201ca fellow Lassiter.\u201d Then the patrolman \u201cwent to check the \u201941 Plymouth.\u201d It \u201chad come on down in front of the Big Apple Cafe,\u201d and the patrolman \u201ctouched the siren and they pulled up along there at the Big Apple.\u201d 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 \u201csaid he did not,\u201d 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 \u201cwalked out there.\u201d Then the patrolman had Boyd to get out of the car, and, finding in \u201cthe glove compartment\u201d \u201ca flashlight and another pistol and a blackjack\u201d he \u201cput them both under arrest,\u201d 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 \u201cthe car a thorough check.\u201d The back seat cushion was out. In the car they found these articles, in addition to those above enumerated: \u201ca bolt cutter . . . under the mat ... on the floor, under boot in the trunk,\u201d \u201ca large screwdriver in the trunk\u201d; \u201cwrecking bar ... in the boot\u201d; \u201cbrace and bit\u201d; \u201cone pistol . . . kind of rusty ... in the boot '. . . behind the tire ... it was loaded\u201d; \u201ca pair of pliers and screwdriver in the boot\u201d; a \u201cstraw hat,\u201d and a \u201cslicker hat\u201d; two pairs of gloves, one in the glove compartment and the other on the floor in the back; another flashlight \u201cin the seat\u201d; and a \u201cfan belt in the trunk.\u201d (Each of these articles was- introduced in evidence as exhibits.)\nTbe patrolman testified tbat when be stopped tbe defendants, Wilborn said, in tbe presence and witbin tbe bearing of Boyd, tbat \u201cthey bad tbat stuff in there for tbeir protection\u201d; tbat \u201ctbey bad been stopped with some liquor and bad some liquor taken from them\u201d; tbat \u201ctbey carried tbe gun for bis own protection\u201d; tbat, on being asked what tbey were doing down there, \u201cWilborn said be bad started to Rocky Mount to get a load of liquor\u201d; tbat, in reply to question of patrolman as to \u201cwhy be didn\u2019t go down 301, it was so much nearer,\u201d Wilborn \u201csaid be wanted to see a man in Henderson, so be came there\u201d; and tbat, on being asked who tbe man was in tbe other car, Wilborn \u201csaid be didn\u2019t know him\u2014 just happened to run up together and tbey were both lost,\u201d but tbat \u201cwhen some officers from Virginia came. down and \u2019 questioned them about it\u201d \u201ctbey later told me who be was.\u201d\nAnd on cross-examination, in pertinent part, tbe patrolman continued: \u201cMr. Boyd said be did not know anything about any of it, said be was just riding . . . Tbey didn\u2019t 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\u2019s tools \u2014 you can use them to cut most anything \u2014 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 \u2014 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 \u2014 tbey are used around garages and filling stations, and carpenters and electricians use them \u2014 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- \u2014 -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\u2019t 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\u2019t find any of tbe articles you have called over.\u201d And on re-direct examination tbe Patrolman said: \u201cI did not find any machine guns ... 75 MM cannons . . . any shotguns.\u201d\nThe 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.\nWhen 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.\nYerdict: Guilty as charged in the bill of indictment.\nJudgment: As to defendant Moffitt Dotson Wilborn: Confinement in State\u2019s 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\u2019s Prison at Ealeigh for a period of not less than 7 nor more than 10 years.\nThough 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.\nAttorney-General McMullan and Assistant Attorneys-Generad Patton and Rhodes for the State.\nYarborough & Yarborough for defendants Boyd and Wilborn, appellants." }, "file_name": "0079-01", "first_page_order": 131, "last_page_order": 137 }