State v. Spangler, 40422

• Decision Date: 29 September 1967
• Docket Number: No. 40422,40422
• Parties: STATE of Minnesota, Respondent, v. James B. SPANGLER, Appellant.
• Court: Minnesota Supreme Court

Page 278

153 N.W.2d 278

278 Minn. 190

STATE of Minnesota, Respondent, v. James B. SPANGLER, Appellant.

No. 40422.

Supreme Court of Minnesota.

Sept. 29, 1967.

Syllabus by the Court

1. In a prosecution for burglary under Minn.St. 609.58, subd. 2(1)(a), it is not necessary for the state to prove the accused had actual possession of burglary tools in his hands or on his person at the time of the offense, but it is sufficient if he had constructive possession and immediate access to them.

2. To secure a conviction for burglary under § 609.58, subd. 2(1)(a), it is not necessary for the state to prove that the accused had possession of burglary tools while in the building. It is sufficient if he possessed the tools when entering the building to gain access to money or property.

3. An assignment of error dealing with a misstatement of the law in the court's charge to the jury is rendered moot by the court reporter's correction of a mistake in the transcript.

C. Paul Jones, Public Defender, Roberta K. Levy, Minneapolis, for appellant.

Douglas M. Head, Atty. Gen., Gerard W. Snell, Acting Sol. Gen., St. Paul, Robert W. Johnson, County Atty., G. D. Giancola, Asst. County Atty., Anoka, for respondent.

OPINION

OTIS, Justice.

Defendant was convicted of burglary and sentenced to a term not to exceed 20 years. The issues on appeal are whether at the time of the offense defendant 'possessed' tools to gain access to money or property, and, if so, whether it was necessary for the state to prove he had such possession while in the building which was burglarized. Defendant contends that in the absence of such proof his sentence should have been limited to a period of 5 years. ¹

The testimony of police officers permitted the jury to find that on Sunday, August 1, 1965, at about 11 p.m., a burglar alarm was activated at the Village of Circle Pines Municipal Liquor Dispensary. Upon arriving at the scene they discovered a hole in the building and ordered that if anyone was inside he come out and surrender. Thereupon defendant emerged from the building and was arrested. Although the contents of the store had been rummaged, nothing was missing. Since it was apparent that the hole had been opened with a sledge hammer, the officers asked defendant where the burglary tools were located. Defendant then admitted he had used tools to gain entrance to the building and he disclosed where he had concealed them. Some 8 feet from the hole the officers found a sledge hammer, two crowbars, two splitting wedges, and a pry bar.

1. Defendant was charged under Minn.St. 609.58, subd. 2(1). He contends that there was no evidence that he possessed burglary tools 'to gain access to money or property,' as is required by subd. 2(1)(a), either when entering or while in the building.

We do not construe so narrowly the word 'possess.' If defendant's theory were adopted, he could not be convicted unless he somehow managed to have on his person or in his hands all or a part of the heavy and cumbersome equipment necessary to break through the wall. It is sufficient under our statute that defendant have constructive possession and immediate access to the tools in order to bring him within subd. 2(1)(a). ² There is both direct and circumstantial evidence from which the jury could decide that he had used the hammer to break in and that shortly before he was apprehended he had deposited the burglary tools where the police found them.

2. Defendant argues that he cannot be convicted under § 609.58, subd. 2(1) (a), unless explosives or burglary tools were in his possession while he was actually in the building. In support of his position, defendant points out that under our prior statute, Minn.St.1961, § 621.08, this was a necessary element of the offense to constitute burglary in the first...