§ 480. Commission of intended offense. The breaking and entry with intent to commit a felony makes the crime of burglary, and it is not at all necessary that the intent shall be executed after the entry.73 It follows that one who breaks and enters a house with felonious intent is none the less guilty of burglary because he abandons such intent after the entry, either from fear or from repentance,74 or because of resistance,75 or though he is arrested before he has committed the offense,76 or because the offense actually committed by him after the entry is not a felony.77 And it also follows that a man may be convicted of burglary with intent to commit rape although the woman intended to be ravished was not in the house at the time of the entry,78 and that a person who enters a building with intent to steal money or property which he believes or assumes is there may be convicted of burglary although in fact there is no money or property there.79 But of course there cannot be a conviction of burglary with 73 3 Inst. 63; 1 Hale P. C. 561. Colorado. Howard v. People, 62 Connecticut. Wilson v. State, 24 Conn. 57. Florida. Walker v. State, 44 Fla. 466, 32 So. 954. Iowa. State v. Maxwell, 42 Iowa 208. Kentucky. Hayes v. Com., 171 Ky. 291, 188 S. W. 415; Olive v. Com., 5 Bush (Ky.) 376. State, 71 Ark. 65, 70 S. W. 1039. Colorado. Howard v. People, 62 Colo. 131, 160 Pac. 1060. Kentucky. Hayes v. Com., 171 Ky. 291, 188 S. W. 415. North Carolina. State v. Boon, 13 Ired. 244, 57 Am. Dec. 555. Texas. Schwartz v. State, 55 Tex. Cr. 36, 114 S. W. 809. 75 As, for example, because of resistance by a woman whom he intends to rape. State v. McDaniel, 1 Winst. (N. C.) 249. 76 Howard v. People, 62 Colo. 131, 160 Pac. 1060. 77 As where he enters with intent to commit grand larceny, but commits only petit larceny. Thomas v. State, 107 Ark. 469, 155 S. W. 1165; Monk v. State, 105 Ark. 12, 150 S. W. 133. Or where he enters with intent to steal all the money there is in a safe, without knowing how much it contains, and it turns out that it contains only enough to make the offense petty larceny. Harvick v. State, 49 Ark. 514, 6 S. W. 19. Arkansas. Birones v. State, 105 Ark. 82, 150 S. W. 416; Warren v. 78 Burke v. State, 5 Tex. App. 74. State, 103 Ark. 165, 146 S. W. 477, 79 Ragland v. State, 71 Ark. 65, 70 Ann. Cas. 1914 B 739; Ragland v. S. W. 1039; State v. Golden, 86 Minn. intent to steal where the accused, at the time of the entry, knew that there was no property in the building, for under such circumstances he could not have had the necessary intent.80 Under some statutes punishing house-breaking with intent to steal, the execution of the felonious intent is an essential element of the offense.81 § 481. Possession of burglars' tools. Statutes in England and in a number of states in this country, in varying terms, make it an offense for a person to have burglars' tools or implements in his possession or custody with intent to use them in the commission of burglary or larceny or for the purpose of stealing.8 To come within the statutes the accused must be in possession of the tools or implements.83 206, 90 N. W. 398; Schultz v. State, 88 Neb. 613, 130 N. W. 105, 34 L. R. A. (N. S.) 243. 82 Mass. 186. no A person who enters a building with intent to rob a safe which he believes contains money is none the less guilty of burglary although there is money in the safe and it is not used as a place for depositing money. State v. Beal, 37 Ohio St. 108, 41 Am. Rep. 490. 80 Ragland v. State, 71 Ark. 65, 70 S. W. 1039; Schultz v. State, 88 Neb. 613, 130 N. W. 105, 34 L. R. A. (N. S.) 243; Winslow v. State, 26 Neb. 308, 41 N. W. 1116. 81 Wallace v. Com., 162 Ky. 85, 172 S. W. 118; Drake v. Com., 31 Ky. L. Rep. 1286; 104 S. W. 1000; and see Moore v. Com., 188 Ky. 505, 222 S. W. 934. No offense can be committed under a statute punishing the breaking into a warehouse with intent to steal or to steal therefrom goods, wares or merchandise or other thing of value, unless the thing taken is goods, wares, or merchandise, and has some value, however small it may be. Whiskey is a thing of value within this rule although it is unlawful to sell it. Ellis v. Com., 186 Ky. 494, 217 S. W. 368. Possession means possession in a legal sense,84 and proof of either actual or constructive possession is sufficient.85 Where two persons are indicted jointly, one of them cannot be convicted on proof of possession by the other only. Implements in the actual possession of one may be in the constructive possession of the other, but possession by one is not the possession of both merely because both intend to use them.86 The tools or implements must be of the kind specified in the statute.87 But it is not necessary to show that they were originally Massachusetts. Com. v. Tivnon, 8 Gray (74 Mass.) 375, 69 Am. Dec. 248. Missouri. State v. Layton, 191 Mo. 613, 90 S. W. 724. Ohio. Martin v. State, 14 Ohio Cir. Ct. (N. S.) 138. The finding of such tools or implements in the dwelling occupied by defendant, and in a part thereof actually used by him, is presumptive evidence of his possession. State v. Kappen, Iowa 180 N. W. 307. Possession of a wife while her husband is with her is prima facie innocent as under his coercion, but she is responsible for her possession during his absence, though it is by his command given before he left. State v. Potter, 42 Vt. 495. And see generally § 105, supra. It is not necessary to prove possession of all of the implements charged, but proof of possession of any one or more of them is sufficient. Com. v. Conlin, 188 Mass. 282, 74 N. E. 351; Com. v. Tivnon, 8 Gray (74 Mass.) 375, 69 Am. Dec. 248. 84 It is not necessary that they be found upon his person, but it is sufficient if they are in his dominion and subject to his control. Kappen, Iowa, 180 N. W. 307; State v. Potter, 42 Vt. 495. State v. N. E. 351; Com. v. Tivnon, 8 Gray (74 Mass.) 375, 69 Am. Dec. 248; State v. Potter, 42 Vt. 495. And see Com. v. Johnson, 199 Mass. 55, 85 N. E. 188. Constructive possession in such case would be proved by evidence that the implements were held by one for himself and as agent for the other or others; that they were jointly bought and owned, but kept by one only or procured and held by one by mutual agreement or at the request of the other or others; or that they were deposited in some place mutually agreed on, to which either or all could resort at pleasure. Com. v. Johnson, 199 Mass. 55, 85 N. E. 188; Com v. Conlin, 188 Mass. 282, 74 N. E. 351. Com. v. Tivnon, 8 Gray (74 Mass.) 375, 69 Am. Dec. 248. Where the implements are given by a husband to his wife for use in committing a burglary previously planned, her custody of them for him and herself and by his direction is their joint possession. State v. Potter, 42 Vt. 495. Where several persons are found out together by night for the common purpose of housebreaking, the possession of housebreaking implements by one of them is the possession of all. Reg. v. Thompson, 11 Cox C. C. 362. 87 State v. Hanley, 133 Iowa 474, 110 N. W. 914; People v. Reilly, 49 N. Y. App. Div. 218, 63 N. Y. Supp. 18, aff'd 164 N. Y. 600, 59 N. E. 1128. The burden is on the state to show made or intended for an unlawful use, nor that they are of a character adapted for burglary only, but it is sufficient if they are suitable for that purpose although they are also capable of being used for a lawful purpose.88 As a rule, an intent to use the implements in the commission of burglary or larceny or for the purpose of stealing is an essential element of the offense, and must be proved.89 A general intent is sufficient, however, and it is not necessary to show an intent to use the tools or implements in a particular place, or for a particular purpose, or in a particular manner. Hence it is not necessary to allege or prove an intent to break into any particular building or structure, or to deprive any particular person of his prop It is not necessary to show that all of the instruments mentioned in the indictment were designed or adapted to effect the objects charged, but it is sufficient to show that one of them was. Com. v. Conlin, 188 Mass. 282, 74 N. E. 351; Com. v. Tivnon, 8 Gray (74 Mass.) 375, 69 Am. Dec. 248. "Tools, implements or other things used by burglars," includes a skeleton key. Anderson v. Com., 176 Ky. 373, 195 S. W. 794. "Tool, machine or implement" includes a bottle of nitroglycerine with a fuse and detonating cap, though they are not in actual combination when found in the possession of the accused. State v. Boliski, 156 Wis. 78, 145 N. W. 368, 50 L. R. A. (N. S.) 825. 88 State v. Erdlen, 127 Iowa 620, 103 N. W. 984; Com. v. Conlin, 188 Mass. 282, 74 N. E. 351; Com. v. Tivnon, 8 Gray (74 Mass.) 375, 69 Am. Dec. 248; People v. Morgan, 13 N. Y. Supp. 448. And see Com. v. Johnson, 199 Mass. 55, 85 N. E. 188. A wrecking or pinch bar used by carpenters, garage men and automobile owners is within the statute, O'Neill v. State, 105 Neb. 824, 182 N. W. 503; this is also true of a chisel or centerbit, Com. v. Tivnon, 8 Gray (74 Mass.) 375, 69 Am. Dec. 248; and door keys, pincers and a piece of iron. Reg. v. Oldham, 5 Cox C. C. 551. 89 Alabama. 10, 6 So. 266. Davis v. State, 87 Ala. Iowa. State v. Kappen, Iowa 180 N. W. 307; State v. Erdlen, 127 Iowa 620, 103 N. W. 984. Massachusetts. Com. v. Day, 138 Mass. 186. Michigan. State v. Jefferson, 161 Mich. 621, 126 N. W. 829; People v. Howard, 73 Mich. 10, 40 N. W. 789. Nebraska. O'Neill v. State, 105 Neb. 824, 182 N. W. 503. New York. People v. Thompson, 33 N. Y. App. Div. 177, 53 N. Y. Supp. 497. Ohio. Martin v. State, 14 Ohio Cir. Ct. (N. S.) 138. Wisconsin. Scott v. State, 91 Wis. 552, 65 N. W. 61. Under the English statute of 14 & 15 Vict. c. 19, it is an offense to be found in possession of housebreaking implements at night without lawful excuse, though the possession is not found to be with intent to commit a felony. Reg. v. Bailey, 6 Cox C. C. 241. 91 90 erty, or even an intent to use the implements in the county or state.9 92 This intent may be established by or inferred from circumstances,93 and it is sometimes provided by statute that the possession of such tools or implements shall be presumptive evidence of it.94 The accused must have knowledge of the adaptation of the implements to and their design for the specified criminal purpose.95 Some of the statutes punish the possession of such instruments or tools without lawful excuse, and put the burden of proving such an excuse on the defendant.96 90 People v. Edwards, 93 Mich. 636, 53 N. W. 778; O'Neill v. State, 105 Neb. 824, 182 N. W. 503; Scott v. State, 91 Wis. 552, 65 N. W. 61. It is not necessary to allege the building upon which the implements are to be used, whether it is within or without the state, nor the name of the owner nor to describe the property to be stolen nor to give the name of the owner. Com. v. Tivnon, 8 Gray (74 Mass.) 375, 69 Am. Dec. 248. 91 People v. Jones, 124 Mich. 177, 82 N. W. 806; Martin v. State, 14 Ohio Cir. Ct. (N. S.) 138. 92 Davis v. State, 87 Ala. 10, 6 So. 266; Com. v. Tivnon, 8 Gray (74 Mass.) 375, 69 Am. Dec. 248; People v. Reilly, 49 N. Y. App. Div. 218, 63 N. Y. Supp. 18, aff'd 164 N. Y. 600, 59 N. E. 1128; Martin v. State, 14 Ohio Cir. Ct. (N. S.) 138. State, 105 Neb. 824, 182 N. W. 503. It may be inferred by the jury from the fact that the accused was engaged in the occupation of burglary and thieving. People v. Jefferson, 161 Mich. 621, 126 N. W. 829. But to sustain a conviction the circumstances proved must be of such a nature as to exclude the idea of any other than a burglarious intent. A mere conjecture or suspicion is not enough. O'Neill v. State, 105 Neb. 824, 182 N. W. 503. 94 State v. Kappen, 180 N. W. 307. Iowa |