Commonwealth v. Tilley

• Decision Date: 28 June 1940
• Citation: 306 Mass. 412,28 N.E.2d 245
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. JAMES B. TILLEY & another.

306 Mass. 412

28 N.E.2d 245

COMMONWEALTH v. JAMES B. TILLEY & another.

Supreme Judicial Court of Massachusetts, Suffolk.

June 28, 1940

April 1, 1940.

Present: FIELD, C.

J., DONAHUE LUMMUS, QUA, & RONAN, JJ.

Possession of Implements for Unlawful Purpose. Statute, Construction. A locked automobile trunk is a "depository" and within the provisions of

G.L. (Ter. Ed.) c 266, Section 49. The intended uses, proof of one of which is necessary to conviction under

G.L. (Ter. Ed.) c 266, Section 49, of possession of implements therein described, are broadly stated in the statute: there is no limitation to use for burglary.

Conditions not in existence or thought of at the time of the enactment of a statute may be covered thereby if within the scope of its language and purpose. The title of a statute cannot limit language of plain meaning therein.

Unauthorized possession of keys delivered by a manufacturer of keys to defendants, afterwards indicted under G.L. (Ter. Ed.) c. 266 Section 49, and specially manufactured to fit automobile trunks in which salesmen carried and left goods, and an attempt by one defendant in the presence of the other to secrete them behind a door on the approach of a police officer, warranted a conviction of both defendants.

INDICTMENT, found and returned on November 9, 1939. The defendants were found guilty at a trial before Williams, J.

W. H. Lewis, (M.

Glaser & H. Wald with him,) for the defendants.

J. T. Cassidy, Assistant District Attorney, for the Commonwealth.

RONAN, J. The defendants were convicted after a trial upon an indictment charging a violation of G.L. (Ter. Ed.) c. 266, Section 49 and alleging that they knowingly had in their possession certain machines, tools and implements adapted and designed for cutting through, forcing and breaking open buildings, rooms, vaults, safes and other depositories, in order to steal therefrom such money and other property as might be found therein; that they knew that such machines, tools and implements were adapted and designed for such purposes; and that they intended to use them for this purpose. The defendants excepted to the refusal to grant their motions for directed verdicts of not guilty.

There was evidence that automobile manufacturers supply keys for the ignition locks, door locks and trunk locks. These keys are manufactured in series, each series having a special design and a special code number. New keys may be obtained from the manufacturers or from a locksmith who has been supplied with a code book and with the machinery for stamping out the various designs of keys in the different series. One Brummitt, a locksmith, had such a code book and stamping machinery. On six occasions during the two months preceding their arrest, the two defendants had called at the shop of this locksmith and secured from him keys that he had made in accordance with the code numbers given to him by the defendants. On September 29, 1939, two police officers saw the defendant Tilley standing on a stairway that led from the street to the front vestibule of an apartment house. The other defendant, Carro, was a few feet away talking to a third person. Upon the approach of the officers Tilley went up the stairs and disappeared into the vestibule. When the officers reached the front door, which was partly open and was against Tilley's back, they saw a bundle containing six automobile keys on the floor behind the partly opened door. Each of these keys had the name Brummitt upon it and all were made in his shop. Each of the keys had a tag which bore a number. Each of four of these keys would lock and unlock the ignition and doors of an automobile registered under the same number as the number upon the tag attached to that key. The two remaining keys would unlock respectively the trunks with which two of these automobiles were equipped. All of these four automobiles were owned and used by salesmen, who were accustomed to carry their goods in their automobiles and to leave them there when they made calls upon their customers. None of the owners of these automobiles had authorized either defendant to have the keys manufactured.

The Commonwealth contended that the defendants had procured the keys for the purpose of entering these automobiles and opening the trunks in order to steal the personal property they contained. The defendants contended that the automobiles and trunks were not depositories of the kind included within the statute; that the defendants did not have possession of the keys; and that, if they did, then they could not have had possession with intent to commit burglary -- which they urge is required for a conviction -- because breaking and entering an automobile or opening the trunks is not burglary.

The statute G.L. (Ter. Ed.) c. 266, Section 49, simply forbids the possession by any one of tools and implements adapted and designed for accomplishing the described acts, knowing the same to be adapted and designed for such purposes, with the intent that they should be so utilized. It may be that the enforcement of the statute will result in the prevention of burglary, by the apprehension of those who intended to commit the offence and who were equipped with the implements suitable to aid them in effecting the crime. It was this aspect of the statute that the court had in mind when, in the course of its opinions in cases where the evidence showed that possession was accompanied by an intent to commit burglary, it was said, in substance, that the offence charged was the possession of burglarious implements with the guilty intent and knowledge. Commonwealth v. Tivnon, 8 Gray, 375, 379. Commonwealth v. Anderson, 245 Mass. 177 , 184. Those decisions were undoubtedly correct in view of the evidence and the issues presented, but neither of them is an authority for the proposition that there can be no violation of the statute unless the defendant intended to use the tools and implements to commit burglary. That question was not raised in either case.

The statute in question makes no mention whatever of burglary. It defines every ingredient constituting the offence. An intent to use the tools or implements to commit burglary is not one of them.

The statute aims to prevent the performance of acts which, if committed, would not amount to burglary. For example, the breaking open of chests and trunks located in a building has been held not to constitute burglary. 2 East P. C. 488. Bennett & Heard, Leading Criminal Cases (1st ed.) 531, 532. State v. Wilson, Coxe, 439. 2 Wharton, Criminal Law (12th ed.) Section 978. The breaking open of a vault or safe in order to steal the contents, when access was gained to the place where it was located without breaking or entering, would not, in the absence of a statute, establish the commission of burglary. Commonwealth v. Trimmer, 1 Mass. 476 . Commonwealth v. Strupney, 105 Mass. 588 . Compare Commonwealth v. Lowrey, 158 Mass. 18 .

The statute punishes one in possession of tools and implements adapted for and intended to be used in stealing any property that has been placed in the protection of a building, room, vault, safe or other depository where access to the property by an intruder is facilitated or accomplished by the use of such tools or implements.

Automobiles manufactured with a trunk attached to or built into the rear of the body have been in general use for several years. When the statute was first enacted, St. 1853, c. 194, automobiles were not in use and consequently the Legislature could not have had automobile trunks in mind in enacting this statute. That...