State v. Thomas

232 S.E.2d 411 (1977) 292 N.C. 251

STATE of North Carolina
v.
Eugene THOMAS.

No. 10.

Supreme Court of North Carolina.

March 7, 1977.

Atty. Gen. Rufus L. Edmisten and Associate Atty. Thomas H. Davis, Jr., Raleigh, for the State.

H. P. Taylor, Jr., Wadesboro, for defendant-appellee.

SHARP, Chief Justice.

In passing upon the validity of a motion to dismiss or for judgment as of nonsuit, the Court considers the evidence in the light most favorable to the State, giving it the benefit of every legitimate inference arising therefrom. If there is any competent evidence tending to establish each material element of the offense charged in the bill of indictment the motion must be overruled. See generally 4 Strong's N.C. Index, Criminal Law §§ 104, 106, 176 (1976). Plenary evidence established that defendant unlawfully opened the safe and feloniously took and carried therefrom money belonging to Mr. Scarborough. However, there is no evidence, nor does the indictment charge, that defendant used or attempted to use "explosives, drills, or tools" or otherwise forced open the safe. This appeal presents the question whether the record contains any evidence that defendant "picked the combination" of the safe within the meaning of the term pick as it is used in G.S. 14-89.1. Although we have considered numerous appeals in prosecutions brought under this statute since its enactment as Chapter 653 of the Session Laws of 1961, we have not heretofore been called upon to resolve the question now before us.

"It is elementary that a criminal statute must be construed strictly. State v. Garrett, 263 N.C. 773, 140 S.E.2d 315; State v. Heath, 199 N.C. 135, 153 S.E. 855, 87 A.L.R. 37; Strong, N.C. Index, Statutes § 5. Adams, J., speaking for the Court in the Heath case, said: `The forbidden act must come clearly within the prohibition of the statute, for the scope of a penal statute will not ordinarily be enlarged by construction to take in offenses not clearly described; and any doubt on this point will be resolved in favor of the defendant.'" State v. Hill, 272 N.C. 439, 158 S.E.2d 329 (1968). Accord, State v. Scoggin, 236 N.C. 1, 72 S.E.2d 97 (1952). Strictly and grammatically construed, G.S. 14-89.1 prohibits the unlawful and forcible opening, attempt to open, or picking of a safe or vault by the use of "explosives, drills, or tools." These three methods are described in an adverbial clause which clearly modifies each element of the compound predicate. Thus, each method of opening a safe must be by means of "explosives, drills, or tools" in order to fall within the prohibition of the statute.

We have examined the cases brought under G.S. 14-89.1 and appealed to this Court since 1961 and also those which were carried no further than the Court of Appeals. In every case, entry to the safe was gained or attempted by means of tools. See e. g., State v. Lewis, 281 N.C. 564, 189 S.E.2d 216 (1972) (chisels and sledge hammer); State v. Battle, 279 N.C. 484, 183 S.E.2d 641 (1971) (hammer, chisel, bar and drill); State v. Spears, 268 N.C. 303, 150 S.E.2d 499 (1966) (ax, pickax and acetylene torch).

The conclusion that the "picking" of a safe must, to come within the prohibition of the statute, be accomplished by means of a picklock (explosives and drills being clearly inapposite) is reinforced by reference to a dictionary. The authoritative Webster's New International Dictionary (2d ed. 1951) defines the transitive verb "pick": "to open (a lock) by or as by a wire." The more casual third edition has not changed this meaning: "to turn (a lock) with a wire or a pointed tool instead of the key esp. with intent to steal." Webster's New International Dictionary (3rd ed. 1964). Thus, to the lexicographer, the word "pick," when used to describe a method of theft, necessarily implies the use of a special tool. In State v. Pinyatello, 272 N.C. 312, 158 S.E.2d 596 (1968), a case in which the defendant was charged with feloniously opening a safe and vault "by the use of an ax and two crowbars and other tools," he contended that G.S. 14-89.1 applied only to safes with combinations. The Court rejected that argument by indicating that the word pick in the statute referred to a mode of gaining entry into safes or vaults without combinations.

The State contends that the adoption of the dictionary definition of pick would necessarily exclude entry to safes gained through divining their combinations by means of careful listening to the sound of the falling tumblers. We consider it extremely improbable that entry into a locked combination safe could be gained by this method without the use of a stethoscopic tool. However, this case does not present that problem. Here, defendant merely opened the doors to an essentially unlocked safe by a half-turn of a knob. In doing so he demonstrated neither particular preparation nor prowess, and he employed no explosives, drills, or tools.

We believe the purpose of G.S. 14-89.1, which authorizes a maximum sentence of thirty years, was to single out for special punishment those criminals who open or attempt to open a safe or vault by means of the special implements (explosives, drills, or tools) specified in G.S. 14-89.1. If, however, we have misconstrued the legislative intent, and it was indeed intended that G.S. 14-89.1 embrace the unlawful entry into or attempt to open a safe or vault by any manipulation of the combination, it will be a simple matter for the General Assembly to amend the section.

The decision of the Court of Appeals sustaining defendant's conviction of felonious larceny and vacating his conviction of safecracking is

Affirmed.