People v. Morgan — 35 N.Y. St. Rep. 643

Majority

p. 643

The People, Resp’ts, v. James E. Morgan, App’lt.

(Supreme Court, General Term, Second Department,

Filed February 9, 1891.)

Headnote

Bubglaby—Possessing bubglab’s tools—Penal Code, § 508.

Where the instruments found on a person are adapted to the commission of the crime of burglary, and the circumstances justify a finding of an intent to use them to commit the crime, the case is one within § 508 of the Penal Code, even if the instruments could be used innocently in legitimate business. It is not necessary that they should be of such a character that they are adapted to burglary only.

Appeal from judgment entered upon conviction of defendant, of the crime of having in his possession implements and tools, adapted, designed and commonly used in the commission of burglary, he having been previously convicted of burglary.

Jerry A. Wernberg, for app’lt; Jas. W. Ridgway, dist. att’y, for resp’ts.

Section 508 of the Penal Code provides as follows: “Any- person who makes or mends, or causes to be made or mended, or has in his possession in the day or night time any engine, machine, tool, false key, pick lock, nippers or implements adapted, designed or commonly used for the commission of burglary, larceny or other crime under circumstances evincing an intent to use or employ or to allow the same to be used or'employed in the commission of crime or knowing that the same is to be used,

p. 644

shall be guilty of misdemeanor, and if he has been previously convicted of any crime, he is guilty of a felony.”

Under this section of the Code the grand jury of Kings county indicted the defendant for having in possession burglar’s tools adapted and designed to the commission of the crime of burglary, of which crime the defendant had been convicted in the city of New York in the year 1885. It was proven on the trial that the defendant at about one o'clock in the morning was standing on Madison street He came out from Madison street on Sumner avenue in Brooklyn. He loitered about this locality some twenty minutes, when a policeman crossed over and asked why he was loitering there at that hour in the morning. He refused to answer the policeman. The policeman then asked for his place of residence. The defendant’s reply was, that he lived in a house; when pressed as to the locality he replied Glynn street and Howard avenue and East New York, and he acted as if he didn’t know where he lived. The policeman arrested him and found on him a hammer, a cold chisel and a file which seemed also to be adapted for use as a punch. These instruments could all be used in honest work, but it was proven also that they were all adapted to burglary. The question of fact was left to the jury as to the guilt of the accused and he was found guilty. The appellant claims that the tools must be of such a character that they are adapted to burglary only. This is not the correct view of the statute. If the implements found on the person were adapted to the commission 'of crime, and the circumstances justified a finding of an intent to use them to commit crime, the statute covers the case even if the implements or tools could be used innocently in legitimate business. The demeanor and answers of the accused, the time of night, the distance from his home, with the finding of the implements secreted on his person and being himself a convicted burglar, taken as a whole, made out a plain case for conviction. The remarks of the prosecuting attorney in respect to the character of the tools and the use of the language of the court of appeals in respect to the character of implements with which to commit crime, were legitimate and proper.

The conviction should, therefore, be affirmed.

Dykman and Pratt, JJ., concur.