O'Neill v. State

• Citation: 182 N.W. 503,105 Neb. 824
• Decision Date: 25 March 1921
• Docket Number: 21523
• Parties: FRANK O'NEILL v. STATE OF NEBRASKA
• Court: Supreme Court of Nebraska

182 N.W. 503

105 Neb. 824

FRANK O'NEILL v. STATE OF NEBRASKA

No. 21523

Supreme Court of Nebraska

March 25, 1921

ERROR to the district court for Douglas county: ALEXANDER C. TROUP JUDGE. Reversed.

REVERSED AND REMANDED.

Jamieson & O'Sullivan, for plaintiff in error.

Clarence A. Davis, Attorney General, A. V. Shotwell, W. W. Slabaugh and Arthur Rosenblum, contra.

LETTON J. ROSE., J., not sitting.

OPINION

LETTON, J.

Plaintiff in error was convicted upon an information charging, in substance, that he and four others on December 5, 1919, in Douglas county, had in their possession, and under their custody and control, "a certain instrument or tool, to wit, a pinch-bar, commonly known as a 'jimmy,' and commonly used by burglars for breaking and entering buildings, with the intent * * * unlawfully, feloniously and burglariously to use said instrument or tool, * * * knowing said instrument or tool, to be in general use among burglars for breaking and entering buildings." Many assignments of error are made, but these only will be considered upon which we think the case turns.

O'Neill with the other men accused drove into a garage at Fortieth and Farnam streets in Omaha, between 10 and 11 p. m., to obtain air, oil and gasoline. Two police officers saw them there, and for some reason not shown in the evidence, but perhaps implied by a statement of officer Adams, then made to them, that Gillinsky and O'Neill had gotten away from him once before, stopped them as they were driving out, made them alight, and searched their persons and the automobile. Nothing incriminating was found on their persons but, in the recess in the back of the front seat into which a seat folded, four revolvers were found, and a short iron or steel pinch or wrecking-bar was found under the back seat. It is on the possession of the latter implement that the prosecution is based.

Section 8645, Rev. St. 1913, is as follows: "Whoever shall be found having upon him or her, or having in his or her possession, custody or control any picklock, crow, key, bit, or other instrument or tool with intent feloniously to break and enter into any dwelling house, store, ware-house, shop or other building containing valuable property, shall be deemed guilty of a felony," etc.

Several witnesses testified as to the name and nature of the tool or instrument in evidence. It is undisputed that such a tool is a common article of sale in hardware stores and is in general use by carpenters in the demolition of frame buildings. It is flattened at one and at the other end is curved and made in the form of a claw for the purpose of pulling nails and prying. In the trade it is known as a "wrecking-bar" or "pinch-bar." It is also in use by garage and automobile owners for the purpose of removing tires, especially when the tires are frozen. The court instructed the jury that the gist of the offense is having possession of a burglarious implement or tool, with intent to use it for the purpose specified in the statute, and that it was unnecessary to prove that it should be of a character adapted for burglary only; that it is sufficient if it is suitable for the purpose charged. Complaint is made of this instruction, but we think it is a correct statement of the law.

It is assigned that the verdict is contrary to law, contrary to the law laid down in the instructions, and is not sustained by sufficient evidence. The evidence seems to show that the tool is not what is usually termed by police officers a burglar's "jimmy." Before the days of automobiles a "jimmy" was usually of a length that could easily be carried and concealed upon the person; but since burglars...