WiNBORNE, J.
Defendants, in the main, stress for error, and properly so, the refusal of the court to grant their motions under C. S., 4643, for judgment of nonsuit.
In considering motion for judgment of nonsuit under C. S., 4643, the general rule as stated in
S. v. Johnson,
199 N. C., 429, 154 S. E., 730, and in numerous other decisions of this Court, is that “if there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury.” But where there is merely a suspicion or conjecture in regard to the charge in the bill of indictment against defendant, the motion for judgment of nonsuit will be allowed.
S. v. Johnson, supra,
and cases cited. See
S. v. Stephenson,
218 N. C., 258, 10 S. E. (2d), 819; and also
S. v. Vinson,
63 N. C., 335;
S. v. Sigmon,
190 N. C., 684, 130 S. E., 854;
S. v. Montague,
195 N. C., 20,’ 141 S. E., 285;
S. v. Madden,
212 N. C., 56, 192 S. E., 859;
S. v. Shelnuti,
217 N. C., 274, 7 S. E. (2d), 561;
S. v. Todd,
222 N. C., 346, 23 S. E. (2d), 47;
S. v. Goodman,
220 N. C., 250, 17 S. E. (2d), 8;
S. v. Penry,
220. N. C., 248, 17 S. E. (2d), 4.
Also, on a motion for judgment as of nonsuit, under C. S., 4643, the, rule is, as stated in
S. v. Fulcher,
184 N. C., 663, 113 S. E., 769, “that where a complete defense is established by the State’s case, a defendant should be allowed to avail himself of such defense.” See also
S. v. Med
den,
187 N. C., 803, 123 S. E., 65;
S. v. Gohoon,
206 N. C., 388, 174 S. E., 91;
S. v. Todd, supra.
In tbe
Todd case, supra,
applying tbis principle to an alleged confession of defendant, offered in evidence by tbe State,
Devin, J.,
said: “While tbe State by offering tbis statement was not precluded from showing that tbe facts were different, no snob evidence was offered, and tbe State’s ease was made to rest entirely on tbe statement of tbe defendant, which tbe State presented as worthy of belief,” citing cases.
defendants are indicted under that portion of tbe statute, O. S., 4236, which prescribes that “if ány person . . . shall be found having in bis possession, without lawful excuse, any pick-lock, key, bit or other implement of housebreaking . . . such person shall be guilty of a felony and punished by fine or imprisonment in the State’s Prison,- or both in the discretion of the court.”
This statute, significant to note, is patterned after the English statute known as the Larceny Act, 1861, 24 and 25 Yict., chapter 96, see. 58, which is more condensed in expression than a prior English statute, 5 Geo. 4, chapter 83, sec. 4, as quoted in Chitty on Criminal Law (1832), Yol. Ill, p. 1116, and in pertinent part prescribes that: “Everyone . . . who is found by night having in his possession without lawful excuse (the proof of which excuse lies on such person) any pick-lock, key, crow, jack, bit, or other implement of housebreaking shall be guilty of a misdemeanor;” And in this connection it is noted that in the case of
S. v. Dozier,
73 N. C., 117, at June Term, 1875, a case in which the Court then said that breaking and entering a storehouse, with intent to steal the goods and chattels therein, is not a criminal offense at common law or by statute in this State,
Bynum, J.,
directed attention to the above English statute. Thereafter, a statute was incorporated in the Code of North Carolina, adopted in 1883, sec. 997, which in pertinent part reads: “If any person . . . shall be found by night having in his possession, without lawful excuse, any pick-lock, key, bit or other implement of housebreaking . . . shall be guilty of an infamous crime,” etc. Thus it appears that the statute so adopted in this State is in almost the same words as the English statute except that the clause “the proof of which excuse lies on such person,” contained in the English statute, was deleted. It is manifest and significant, therefrom, that the General Assembly did not intend that this clause should apply in this State. And the statute, unchanged in wording, was brought forward in the Revisal of 1905, as section 3334, which was amended in 1907 by striking out the words “by night.” Public Laws 1907, chapter 822, see. 1. As so amended it is now the statute under which defendants are indicted. O. S., 4236. In the light of the foregoing it is clear that in this State, under this statute, the gravamen of the offense is the possession of burglar’s tools without
lawful excuse,
S. v. Vick,
213 N. C., 235, 195 S. E., 779, and the burden is on the State to show two things: (1) That the person charged was found having in his possession an implement or implements of housebreaking enumerated in, or which come within the meaning of the statute; and (2) that such possession was without lawful excuse.
In this connection it is noted that the English courts, treating of cases relating to this phase of the statute, seem to hold that although an implement be used in the ordinary affairs of life for lawful purposes, it is to be considered an implement of burglary within the meaning of the .Act (1) if it be capable of being used for the purpose of housebreaking, and (2) if, at the time and placed alleged, the person charged had it in possession for that purpose. And, further, although under the English rule when a person is charged with possession of an implement of housebreaking, the burden of proving lawful excuse is on the person so charged, that burden is discharged by the accused if he prove that the' alleged implement of housebreaking, capable of being used for that purpose, is a tool used by him in his trade or calling. See 9 Halsbury’s Laws of England, Part XIII, on Criminal Law and Procedure, section 1353; and The English and Empire Digest Supplement 1940, Vol. 14, page 108, Nos. 10727, 10729 (a); and Vol. 15, page 960, Part XXXIV, section 13.
Also, in the case of
S. v. Ferrone,
97 Conn., 258, 116 A., 336, it appears that in the State of Connecticut there is a statute in almost exact wording of the pertinent section of the English Larceny Act, including the clause as to proof of excuse being upon the accused, which is herein-above quoted. In that case the Supreme Court of Errors of Connecticut, speaking of, and approving the charge of the trial court, as a clear and accurate construction of the statute, has this to say: “ An instrument of housebreaking,’ said the Court, ‘may be such from its essential nature, that is, it may be one which is made and designed for the express purpose of housebreaking.’ Or, it ‘may be one which is such temporarily and for a particular purpose, and whether such or not would depend upon two considerations: “First, is it one that is reasonably adapted for use in housebreaking; and, second, was it at the time intended or actually used for that purpose ?” ’ ”
In the light of the similarity in wording of the English and Connecticut statutes to that in this State, C.
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WiNBORNE, J.
Defendants, in the main, stress for error, and properly so, the refusal of the court to grant their motions under C. S., 4643, for judgment of nonsuit.
In considering motion for judgment of nonsuit under C. S., 4643, the general rule as stated in
S. v. Johnson,
199 N. C., 429, 154 S. E., 730, and in numerous other decisions of this Court, is that “if there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury.” But where there is merely a suspicion or conjecture in regard to the charge in the bill of indictment against defendant, the motion for judgment of nonsuit will be allowed.
S. v. Johnson, supra,
and cases cited. See
S. v. Stephenson,
218 N. C., 258, 10 S. E. (2d), 819; and also
S. v. Vinson,
63 N. C., 335;
S. v. Sigmon,
190 N. C., 684, 130 S. E., 854;
S. v. Montague,
195 N. C., 20,’ 141 S. E., 285;
S. v. Madden,
212 N. C., 56, 192 S. E., 859;
S. v. Shelnuti,
217 N. C., 274, 7 S. E. (2d), 561;
S. v. Todd,
222 N. C., 346, 23 S. E. (2d), 47;
S. v. Goodman,
220 N. C., 250, 17 S. E. (2d), 8;
S. v. Penry,
220. N. C., 248, 17 S. E. (2d), 4.
Also, on a motion for judgment as of nonsuit, under C. S., 4643, the, rule is, as stated in
S. v. Fulcher,
184 N. C., 663, 113 S. E., 769, “that where a complete defense is established by the State’s case, a defendant should be allowed to avail himself of such defense.” See also
S. v. Med
den,
187 N. C., 803, 123 S. E., 65;
S. v. Gohoon,
206 N. C., 388, 174 S. E., 91;
S. v. Todd, supra.
In tbe
Todd case, supra,
applying tbis principle to an alleged confession of defendant, offered in evidence by tbe State,
Devin, J.,
said: “While tbe State by offering tbis statement was not precluded from showing that tbe facts were different, no snob evidence was offered, and tbe State’s ease was made to rest entirely on tbe statement of tbe defendant, which tbe State presented as worthy of belief,” citing cases.
defendants are indicted under that portion of tbe statute, O. S., 4236, which prescribes that “if ány person . . . shall be found having in bis possession, without lawful excuse, any pick-lock, key, bit or other implement of housebreaking . . . such person shall be guilty of a felony and punished by fine or imprisonment in the State’s Prison,- or both in the discretion of the court.”
This statute, significant to note, is patterned after the English statute known as the Larceny Act, 1861, 24 and 25 Yict., chapter 96, see. 58, which is more condensed in expression than a prior English statute, 5 Geo. 4, chapter 83, sec. 4, as quoted in Chitty on Criminal Law (1832), Yol. Ill, p. 1116, and in pertinent part prescribes that: “Everyone . . . who is found by night having in his possession without lawful excuse (the proof of which excuse lies on such person) any pick-lock, key, crow, jack, bit, or other implement of housebreaking shall be guilty of a misdemeanor;” And in this connection it is noted that in the case of
S. v. Dozier,
73 N. C., 117, at June Term, 1875, a case in which the Court then said that breaking and entering a storehouse, with intent to steal the goods and chattels therein, is not a criminal offense at common law or by statute in this State,
Bynum, J.,
directed attention to the above English statute. Thereafter, a statute was incorporated in the Code of North Carolina, adopted in 1883, sec. 997, which in pertinent part reads: “If any person . . . shall be found by night having in his possession, without lawful excuse, any pick-lock, key, bit or other implement of housebreaking . . . shall be guilty of an infamous crime,” etc. Thus it appears that the statute so adopted in this State is in almost the same words as the English statute except that the clause “the proof of which excuse lies on such person,” contained in the English statute, was deleted. It is manifest and significant, therefrom, that the General Assembly did not intend that this clause should apply in this State. And the statute, unchanged in wording, was brought forward in the Revisal of 1905, as section 3334, which was amended in 1907 by striking out the words “by night.” Public Laws 1907, chapter 822, see. 1. As so amended it is now the statute under which defendants are indicted. O. S., 4236. In the light of the foregoing it is clear that in this State, under this statute, the gravamen of the offense is the possession of burglar’s tools without
lawful excuse,
S. v. Vick,
213 N. C., 235, 195 S. E., 779, and the burden is on the State to show two things: (1) That the person charged was found having in his possession an implement or implements of housebreaking enumerated in, or which come within the meaning of the statute; and (2) that such possession was without lawful excuse.
In this connection it is noted that the English courts, treating of cases relating to this phase of the statute, seem to hold that although an implement be used in the ordinary affairs of life for lawful purposes, it is to be considered an implement of burglary within the meaning of the .Act (1) if it be capable of being used for the purpose of housebreaking, and (2) if, at the time and placed alleged, the person charged had it in possession for that purpose. And, further, although under the English rule when a person is charged with possession of an implement of housebreaking, the burden of proving lawful excuse is on the person so charged, that burden is discharged by the accused if he prove that the' alleged implement of housebreaking, capable of being used for that purpose, is a tool used by him in his trade or calling. See 9 Halsbury’s Laws of England, Part XIII, on Criminal Law and Procedure, section 1353; and The English and Empire Digest Supplement 1940, Vol. 14, page 108, Nos. 10727, 10729 (a); and Vol. 15, page 960, Part XXXIV, section 13.
Also, in the case of
S. v. Ferrone,
97 Conn., 258, 116 A., 336, it appears that in the State of Connecticut there is a statute in almost exact wording of the pertinent section of the English Larceny Act, including the clause as to proof of excuse being upon the accused, which is herein-above quoted. In that case the Supreme Court of Errors of Connecticut, speaking of, and approving the charge of the trial court, as a clear and accurate construction of the statute, has this to say: “ An instrument of housebreaking,’ said the Court, ‘may be such from its essential nature, that is, it may be one which is made and designed for the express purpose of housebreaking.’ Or, it ‘may be one which is such temporarily and for a particular purpose, and whether such or not would depend upon two considerations: “First, is it one that is reasonably adapted for use in housebreaking; and, second, was it at the time intended or actually used for that purpose ?” ’ ”
In the light of the similarity in wording of the English and Connecticut statutes to that in this State, C. S., 4236, the construction so made and applied by the English and Connecticut courts, as above indicated, is convincing and appropriate in considering the case in hand.
Therefore, applying these principles to the facts in the present case, we are of opinion that the State has failed to offer evidence sufficient to support a verdict of guilty. The evidence fails to show that any of the articles found in the automobile was an implement made and designed for the express purpose of housebreaking. It fails to show that any of
them were implements enumerated particularly in tbe statute, except perhaps tbe “bit.” It fails to sbow tbat any of tbe implements were reasonably adapted for use in housebreaking, or tbat they were tbe kind of implements used by burglars. On tbe contrary, tbe evidence for tbe State tends to show tbat each of tbe articles, including tbe “bit,” so found, except tbe pistols, and blackjack, is a tool or instrument in common use in lawful occupations, and in tbe ordinary affairs of life. Moreover, tbe evidence fails to sbow facts and circumstances from which it may be inferred tbat at tbe time and place in question defendants possessed tbe implements, singly or in combination, as burglar’s tools or for tbe purpose of housebreaking.
Tbe phrase “without lawful excuse” must be construed in tbe spirit of tbe statute. And, even though tbe possession of tbe pistols and blackjack be unlawful, and even though tbe defendants possessed tbe pistols and blackjack for tbe purpose of personal protection in tbe unlawful transportation of intoxicating liquor, in accordance with statement of defendant Wilborn, such possession is not within tbe meaning of tbe statute in question.
This case is distinguishable from
S. v. Vide, supra,
where defendant was charged with having in possession certain implements of burglary. Though it is there stated tbat “tbe particular section of tbe statute under which defendant was being tried does not require tbe proof of any ‘intent’ or ‘unlawful use,’ ” it must be borne in mind tbat there “tbe defendant made no contention tbat tbe tools found in tbe possession of Denton and tbe other occupants of tbe car were not implements of housebreaking.” Therefore, tbe rule there stated must be read in tbe light of tbe facts in tbat case. “Tbe law discussed in any opinion is set within tbe framework of tbe facts of tbat particular case,”
Barnhill, J.,
in
Light Co. v. Moss,
220 N. C., 200, 17 S. E. (2d), 10. See also
S. v. Utley, ante,
39.
For the reasons stated, tbe judgment of Superior Court against each defendant is
Eeversed.