State v. Garrett, 657
| Decision Date | 24 February 1965 |
| Docket Number | No. 657,657 |
| Citation | 263 N.C. 773,140 S.E.2d 315 |
| Court | North Carolina Supreme Court |
| Parties | STATE, v. Vernon GARRETT. |
T. W. Bruton, Atty. Gen., Harry W. McGalliard, Deputy Atty. Gen., for the State.
James G. Exum, Jr., Greensboro, for defendant appellant.
This Court is of the opinion the charge and 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, possession, 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. 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...
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