Opinion
The trier could properly infer, from the unchallenged facts, that the defendants, as they walked along a street in a residential neighborhood in the middle of the night, had in their possession tools of a type commonly used in housebreaking. Under the statute (53-71), it is a crime for a person to have in his possession, at night, "without lawful excuse, the proof of which excuse shall be upon him, any . . . instrument of house-breaking." As the defendants offered no evidence, they failed to prove "lawful excuse." Consequently, the conclusion of the trier that they were guilty of the crime of possessing burglar tools in violation of the statute could not be disturbed. Among the tools found in the car of one of the defendants, parked near the scene, was a sledge hammer which a witness identified a one missing from a dairy. Since the defendants were not charged with possessing stolen goods and did not assign as error the finding that the hammer was stolen, any error in admitting evidence of its source was harmless
Argued May 5, 1959
Decided June 23, 1959
Informations charging the defendants with the crime of possession of burglar tools in the night season and charging the defendant in the second case with being a habitual offender, brought to the Superior Court in Fairfield County and tried to the court, Devlin, J.; judgment of guilty in both cases and appeal by the defendants. No error.
George C. Furkiotis, with whom, on the brief, were Raymond W. Ganim and George W. Ganim, for the appellants (defendants).
Lorin W. Willis, state's attorney, for the appellee (state).
These two appeals were combined by order of the trial court pursuant to the provisions of 382 of the Practice Book. The defendants were charged with the crime of possession of burglar tools in the night season, in violation of 8408 of the 1949 Revision (Rev. 1958, 53-71) of the General Statutes. The defendant in the second case was charged with being a habitual offender.
"Sec. 8408. POSSESSION OF ARMS ON BURGLARS' TOOLS IN THE NIGHT. Any person who shall be, in the night, armed with any dangerous or offensive weapon or instrument, with intent to break or enter any dwelling-house or other building and to commit any crime therein, or shall, in the night, have in his possession, without lawful excuse, the proof of which excuse shall be upon him, any key, picklock, jimmy, jack or bit or other instrument of house-breaking or, in the night, shall have his face blackened or otherwise disguised, with intent to commit any crime, or shall be, in the night, unlawfully in any dwelling-house or other building, with intent to commit any crime, shall be imprisoned not more than five years."
The trial court found the following unchallenged, material facts: About 1:55 a.m. on August 12, 1957, the defendants were walking along the sidewalk on the south side of Capitol Avenue at Norman Street in Bridgeport. They crossed over to the north side of the avenue some 200 feet west of Park Avenue. This section of Bridgeport is a residential neighborhood. A police radio car, facing westerly on Capitol Avenue, was parked at the intersection of Park Avenue and Capitol Avenue. It was equipped with a spotlight on the driver's side and a red dome light on top, but only the parking lights were on at the time. The defendants walked along the north side of Capitol Avenue for only a short distance and then started to cross to the south side. As they continued Walking, the officer in the police car began to drive Westerly on Capitol Avenue. He proceeded along the avenue, passing the defendants, and then turned south on Norman Street to Cleveland Avenue, where he turned his car around and came back to Capitol Avenue. He again saw the defendants walking along the south side of Capitol Avenue about twenty-five feet from the police car. He then heard the sound of a metallic object striking the ground at the point where the defendants were walking and saw the defendants continue on their way. After they had walked on a short distance, he went to the spot where they were when he heard the sound and discovered an iron hand bar on the grass by the sidewalk. He overtook the defendants at Capitol and Wood Avenues and asked them what they were doing. The defendant Perkins replied, "We were just out taking a walk." The officer then asked the defendants if they had a car and both of them answered, "No." A few moments later, in response to a question, the defendants admitted that they did own cars and stated they had left them at a place which was more than a mile from the scene. The officer then called the attention of the defendants to a Pontiac car parked a short distance away on Norman Street, and the defendant Perkins admitted it was his and said that he had left it there because it had broken down. The Pontiac was in good working order and had not broken down.
When the defendants were asked if they had seen the hand bar, Lillie said, "No," and Perkins made no reply. Upon further search of the area, another hand bar was found in the grass at the edge of the sidewalk at the spot where the' officer had first heard the metallic sound of a falling object. The trunk compartment of the Pontiac car of the defendant Perkins was opened with a key found under the front floor mat, and the following articles were found by the officer: a large sledge hammer, two pry bars, a small sledge hammer, a metal hammer, a ball peen hammer, a screw driver, a toolbox containing wrenches, pliers and screw drivers, another tool-box containing wrenches, and a punch. Under the front floor mat were two screw drivers and four flashlights, the latter not being in working order. Many of these tools were reasonably adapted for use in housebreaking and were of a type customarily used by burglars in forcing the doors and windows of buildings and opening safes. In the questioning by the officer, Perkins stated that the defendants' reason for being in the neighborhood where they were found was that they were looking for a "score," which, Perkins explained, was "a place to hit." He further stated to the police that Lillie was the one who had carried both bars and that Lillie dropped them when he spotted the officer. The bars, known as small jimmies or rippers, were tools reasonably adapted for use in housebreaking and were of a type commonly used by burglars for forcing windows and safes. The large sledge hammer was likewise a tool reasonably adapted for use in housebreaking and was of a type commonly used in the commission of burglaries for breaking down doors and pounding the bottoms or tops out of safes. The two pry bars, known as "rippers," were reasonably adapted for use in housebreaking and were tools of a type frequently used by burglars for opening doors and windows and peeling safe doors. The defendants did not testify and offered no witnesses in their own behalf.
The court concluded that the tools found in the possession of the defendants or under their control were reasonably adapted for use as burglars' tools and were instruments of housebreaking; that such possession and control was without lawful excuse; and that the defendants were guilty of a violation of 8408 of the 1949 Revision as charged. The defendants contend that the court erred in reaching these conclusions. Conclusions by the court are tested by the finding. Nixon v. Gniazdowski, 145 Conn. 46, 52, 138 A.2d 796; Investors Mortgage Co. v. Schiott, 143 Conn. 61, 64, 118 A.2d 897. The court's conclusions are supported by the facts found.
The defendants claim that the court erred "[i]n permitting the testimony of Joseph Whisher to be introduced concerning the ownership and theft of [the large] sledgehammer." The witness did not testify concerning the ownership and theft of a sledge hammer. He testified that he had last seen the large sledge hammer on July 26, 1957, at the dairy where he worked, and that when he returned to work the next day he noticed that "the tools were missing." Upon this testimony, the court found that the sledge hammer had been "stolen" from the dairy. Evidence that the hammer was "missing" would not necessarily support a finding that it was "stolen." But the defendants have not assigned error in the court's finding that the sledge hammer had been stolen. This being so, any error in the admission of the evidence was harmless. Wilson v. Darien, 130 Conn. 318, 322, 33 A.2d 320. Furthermore, the defendants were not charged with possessing stolen goods. Each of them was charged with violating the statute, now 53-71, which makes it a crime for any person to have burglar tools in his possession in the night, "without lawful excuse, the proof of which excuse shall be upon him." As the defendants offered no evidence, they failed to prove "lawful excuse."