State v. Lovelace , 272 N.C. 496 ( 1968 )

158 S.E.2d 624 (1968) 272 N.C. 496

STATE of North Carolina
v.
Frank Ziser LOVELACE, Jr.

No. 272-Q.

Supreme Court of North Carolina.

January 12, 1968.

T. W. Bruton, Atty. Gen., James F. Bullock, Deputy Atty. Gen., for the State.

Eugene C. Hicks, III, Charlotte, for defendant appellant.

HIGGINS, Justice.

Both Dixon and Lovelace were charged with the felonious possession of implements of housebreaking. Both were at the entrance to the restaurant at 1:45 on Sunday morning. They were within three feet of the front entrance door which, when examined, showed evidence of tool marks around the lock. As the two men became alerted to the presence of the officers, Dixon attempted to prevent the discovery of the large screwdriver and hammer, both of which he held, by throwing them away.

The tools, though capable of legitimate use, nevertheless under the circumstances disclosed by the evidence, permitted a legitimate inference they were intended for the purpose of breaking into the restaurant. Obviously, the attempt to hide them tends to show their possession was without lawful excuse. Although the tools were seen in the hands of Dixon only, who did not appeal, nevertheless, if the men were acting together in the attempt to use them to force entry into the restaurant, both in law would be equally guilty of the unlawful possession. This Court said, in State v. Maynard, 247 N.C. 462, 101 S.E.2d 340:

"* * * ``Everyone who enters into a common purpose or design is equally deemed in law a party to every act which had before been done by the others, and a party to every act which may afterwards be done by any one of the others, in furtherance of such common design.' State v. Jackson, 82 N.C. 565; State v. Smith, 221 N.C. 400, 20 S.E.2d 360; State v. Summerlin—(Hole-in-the-Wall Case,—232 N.C. 333, 60 S.E.2d 322; State v. Anderson, 208 N.C. 771, loc. cit. 786, 182 S.E. 643; State v. Herndon, 211 N.C. 123, 189 S.E. 173."

The evidence was sufficient to warrant the finding that Dixon and Lovelace were acting together at the time of discovery, shortly after midnight on Sunday morning. Both were together at the dimly lighted door of a closed building. Both had been drinking. After arrest, they were placed in the rear seat of the police car and on the way to headquarters, one of the men volunteered the statement, "Our car was out of gas. We were going to get some gas." The evidence warranted the finding the men were acting together and although the tools were only seen in the hands of Dixon, yet the evidence warranted the finding that both were there attempting to use them to force entry into the restaurant.

We have reviewed the objections to the charge. When considered contextually, we find it free from valid objection.

No error.