State v. Garrett , 263 N.C. 773 ( 1965 )

140 S.E.2d 315 (1965) 263 N.C. 773

STATE
v.
Vernon GARRETT.

No. 657.

Supreme Court of North Carolina.

February 24, 1965.

T. W. Bruton, Atty. Gen., Harry W. McGalliard, Deputy Atty. Gen., for the State.

James G. Exum, Jr., Greensboro, for defendant appellant.

HIGGINS, Justice.

This Court is of the opinion the charge and the evidence were insufficient to support the conviction for having in possession, without lawful excuse, an implement of house breaking as contemplated in G.S. § 14-55. The statute makes it unlawful (1) to be found armed with a dangerous or offensive weapon with intent to break and enter a dwelling house and to commit a felony or other infamous crime therein; or (2) to be found having in his possession, without lawful excuse, any pick lock, key, bit, or other implement of house breaking; or (3) shall be found in such building with intent to commit a felony or other infamous crime therein, etc. Each is a separate offense. For definitions and analyses, see State v. Davis, 245 N.C. 146, 95 S.E.2d 564; State v. Baldwin, 226 N.C. 295, 37 S.E.2d 898; State v. Boyd, 223 N.C. 79, 25 S.E.2d 456; State v. Vick, 213 N.C. 235, 195 S.E. 779.

The indictment in No. 14079 attempts to charge a felony as defined in (2) of the statute, that is, possessing, without lawful excuse, an implement of house breaking, "to-wit: a tire tool." We have some doubt whether a tire tool under the ejusdem generis rule is of the same classification as a pick lock, key, or bit, and hence, condemned by the statute. "The maxim ejusdem generis applies especially to the construction of legislative enactments. It is founded upon the obvious reason that if the legislative body had intended the general words to be used in their unrestricted sense the specific words would have been omitted." Turner v. Gastonia City Board of Education, 250 N.C. 456, 109 S.E.2d 211.

A tire tool is a part of the repair kit which the manufacturer delivers with each motor vehicle designed to run on pneumatic tires. Not only is there lawful excuse for its possession, but there is little or no excuse for a motorist to be on the road without one. A statute creating a criminal offense must be strictly construed. Strong's N.C. Index, Statutes, Vol. 4, p. 179.

In the charge to the jury, the court summarized at great length the evidence and the contentions of the State with respect to the four charges. Likewise, the court fairly summarized the defendant's testimony that his purpose was to provoke the officers and cause them worry in retaliation for the trouble the Graham officers had caused him. However, the court failed to charge that if the jury should accept his version, and find that he did not break and enter, or attempt to break and enter, any of the buildings, but merely damaged them for the purpose of requiring the officers to spend time and effort to determine whether a felonious breaking had been committed, in that event he would not be guilty of house breaking and it would be the jury's duty to return verdicts of not guilty.

The defendant's conduct, according to his own story, was not to his credit. However, according to all the evidence nothing whatever was stolen from any of the establishments. Under the circumstances the defendant was entitled to the instruction that if the jury should find that all he did was to worry the officers as he claimed, he could not be guilty of either of the house breaking charges. The charges of house breaking for the purpose of committing a felony do not include malicious or intentional injury to the buildings as lesser offenses. The defendant was entitled to, but did not receive, a charge to that effect. For this error, new trials are required in the house breaking charges.

Reversed in No. 14079.

New Trials in Nos. 14078, 14080, and 14081.