State v. Bagley
State v. Bagley
Opinion of the Court
Defendant first assigns as error the failure of the trial court to declare a mistrial after learning that the bailiff had engaged in conversation with one of the jurors during the trial of this matter. The trial court held a voir dire hearing and determined that
We also overrule defendant’s assignment of error to the trial court’s failure to question the jurors in regard to this conversation. All of the evidence concerning the conversation showed that the conversation was decidedly nonprejudicial in character, and we do not see what purpose would have been achieved by extending the inquiry further. We note that the trial court properly instructed the jury as to what evidence they could and should consider, and conclude that any error here would be harmless.
Defendant next assigns as error the failure of the trial court to allow his motion for nonsuit at the close of State’s evidence. We find this assignment of error to be wholly without merit. On a motion for nonsuit, the evidence for the State is to be viewed by the trial court as true, with any conflicts or discrepancies in the evidence being resolved, for the purposes of the motion, in favor of the State. See State v. Cooper, 286 N.C. 549, 213 S.E. 2d 305 (1975). Evidence for the State tended to show that a deputy of the Durham County Sheriff’s Department (having gone with another
Defendant further assigns as error the trial court’s submission to the jury of the issue regarding possession of implements of housebreaking, an offense under N.C. Gen. Stats. § 14-55. State’s evidence, as noted above, tended to show that both a tire tool and a crowbar were found in close proximity to defendant and his partner at the scene of the offense. Defendant contends, on the authority of State v. Garrett, 263 N.C. 773, 140 S.E. 2d 315 (1965) and State v. Godwin, 3 N.C. App. 55, 164 S.E. 2d 86 (1968) (Godwin following the rationale and holding of Garrett), that it was error for the trial court to permit the jury to consider whether a tire tool could be an implement of house- (or store-) breaking.
The decided cases display a less than uniform degree of consistency in approach to the question what is or is not an “other implement of housebreaking” within the purview of N.C. Gen. Stats. § 14-55. The decisions, at least on first consideration, would appear to be oriented towards reaching particular results in particular cases, rather than in refining and applying a uniform rule of law. See generally Annot. 33 A.L.R. 3rd 798. It is by this ad hoe procedure that we came to the result whereby a crowbar, which is a tool well-suited for prying and forcing, is susceptible to adjudication as being an implement of housebreaking as a matter of law (even though many crafts and trades legitimately employ
The analysis employed by the Supreme Court in Garrett, whereby it concluded that a tire tool was not an “other implement of housebreaking” within the contemplation of N.C. Gen. Stats. § 14-55, appears to be essentially quantitative: virtually every motorist possesses a tire tool, and, indeed, should possess one for safe travel upon the highways. Therefore, because the opportunities for lawful possession vastly outweigh numerically the instances where the tire tool may be used for some felonious purpose, it is concluded that the Legislature, under the ejusdem generis rule, did not intend to include the tire tool in the catch-all phrase “other implement of housebreaking.”
A different type of analysis was foreshadowed in State v. Vick, 213 N.C. 235, 195 S.E. 779 (1935) and is employed in the line of decisions beginning with State v. Boyd, 223 N.C. 79, 25 S.E. 2d 456 (1943) and continuing with State v. Baldwin, 226 N.C. 295, 37 S.E. 2d 898 (1946), State v. Morgan, 268 N.C. 214, 150 S.E. 2d 377 (1966), and State v. Lovelace, 272 N.C. 496, 158 S.E. 2d 624 (1967). In Boyd, Justice Winborne, writing for the Court, discussed at length and in detail the history of the statute (now N.C. Gen. Stats. § 14-55, then C.S. 4236) and its interpretation both in England and in this country. He relied upon a Connecticut case, State v. Ferrone, 97 Conn. 258, 116 A. 336 (1922), in formulating a qualitative analytic approach to the question. Two classes of implements were described: those which were designed specifically for housebreaking (and presumably including those specifically enumerated in the statute) and those which become implements of housebreaking “temporarily and for a particular purpose.” In determining whether a particular tool fits into the second class, a two-prong test was employed: (1) was the tool in question reasonably adapted for use in housebreaking; and, (2) was the tool in question at the time intended or actually used for that purpose.
The advantages of this second approach to classifying objects as implements of housebreaking are obvious. It enables the trial
The analysis employed in Boyd had yielded determinations that, in a proper case with supporting evidence, the following implements may be found to be “other implements of housebreaking” within the contemplation of N.C. Gen. Stats. § 14-55: a crowbar (Morgan); screwdrivers (Morgan, Lovelace)-, ball peen hammers and wrenches (State v. Craddock, 272 N.C. 160, 158 S.E. 2d 25 (1967)). All of these tools have commonly occurring legitimate uses in ordinary occupations. Nonetheless, any of them may be used (and they are well adapted for use) in housebreaking under particular circumstances, and, if the cases are to be accorded credibility, have been so used. We fail to see what distinguishes a tire tool from these other implements. We are disinclined to indulge in metaphysical speculation as to what intrinsic qualities or properties inhere to a tire tool which would make it immune to the analysis applied to the other enumerated implements by virtue of Boyd as listed above. Accordingly, we decline to follow Garrett and Godwin as we find them to be inconsistent with the preponderant and better-reasoned authority. For the reasons stated, we find no error in the trial court’s permitting the jury to conclude that a tire tool was an implement of store-breaking. There is abundant evidence to show that the tire tool was used in the breaking. No explanation appears of record which would justify the presence of the tire tool inside the store after the breaking. No suggestion appears of record that any automobile tire was in need of or receiving repair on the premises in question at the time defendant and his companion were apprehended. The jury was properly instructed on the principles of actual and contructive possession, and no reason has been argued
We conclude that defendant has had a fair trial, free from prejudicial error.
No error.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.