Appeal by defendant from Wood, Judge. Judgment entered 30 November 1978 in Superior Court, Forsyth County. Heard in the Court of Appeals 28 August 1979.
Clark, Judge. Judges Martin (Robert M.) and Webb concur.
We elect to consider first the defendant's contention that the felony charge should have been dismissed because the acetylene torch and ladder were not "implements of housebreaking" possessed in violation of G.S. 14-55.
This statute, in pertinent part, provides: "If any person . . . shall be found having in his possession, without lawful excuse, any picklock, key, bit, or other implement of housebreaking . . . such person shall be guilty of a felony . . . ." G.S. 14-55 (1979) (prior to amendment concerning sentencing, 1979 N.C. Sess. Laws, c. 760, sec. 5).
Since neither an acetylene torch nor a ladder is enumerated in the statute, the question is whether the torch or ladder, singly or in combination, are implements of housebreaking within the meaning of G.S. 14-55.
The stepladder was two and one-half to three feet long. The acetylene torch was "a big torch with big tanks on a stand," as described by Deputy Sheriff Young. The indictment alleged that the torch was "mounted on a wheeled stand." The fact that the ladder and torch were possessed and used by the defendant in breaking open a window in a building is not determinative of the question. The use to which a tool or instrument is put is not necessarily controlling in determining whether it is within the intent of the phrase "or other implement of housebreaking" as contained in G.S. 14-55. State v. Garrett, 263 N.C. 773, 140 S.E.2d 315 (1965); State v. Godwin, 3 N.C. App. 55, 58, 164 S.E.2d 86 (1968).
The defendant contends that the term "other implements of housebreaking" in G.S. 14-55 is unconstitutionally vague. The Supreme Court of North Carolina has established that "other implements of housebreaking" include those made and designed for housebreaking purposes, or those commonly used for housebreaking, or those reasonably adapted for use in housebreaking. State v. Boyd, 223 N.C. 79, 25 S.E.2d 456 (1943). See Generally, Annot. Validity, Construction, and Application of Statutes Relating to Burglars' Tools, 33 A.L.R. 3d 798 (1970). This interpretation of the somewhat vague statutory language adds little to the certainty of the crime defined in G.S. 14-55. Nor have the appellate courts of the State in applying this law to various tools and implements established a pattern so as to clarify the crime. See, 2 Strong's N.C. Index 3d Burglary § 10.3. Some of the apparently conflicting decisions can be reconciled by variances in the evidence relating to possession "without just excuse," another element of the statutory crime. State v. Baldwin, 226 N.C. 295, 37 S.E.2d 898 (1946); State v. Boyd, supra; State v. Stockton, 13 N.C. App. 287, 185 S.E.2d 459 (1971); State v. Shore, 10 N.C. App. 75, 178 S.E.2d 22 (1970), cert. denied, 278 N.C. 105, 179 S.E.2d 453 (1971). For an analysis and discussion of the above and other cases see the recent opinion, State v. Bagley, No. 7914SC398 (Filed 2 October 1979).
The ladder was unusual in that it was only three feet in length. The acetylene torch was not a small portable hand tool; were it small, the torch might well qualify as a tool reasonably adapted for use in cutting and opening safes or metal boxes used for the safekeeping of money, jewelry, and other valuables. But
the acetylene torch possessed by the defendant was a large torch with tanks mounted on a wheeled stand. Neither the ladder nor the acetylene torch possessed by the defendant was reasonably adapted for use in housebreaking and they do not qualify as implements of housebreaking within the meaning of G.S. 14-55. Having reached this conclusion, we do not reach the question of unconstitutional vagueness.
Defendant next assigns as error the failure to dismiss the charge of aiding and abetting Cathy C.'s escape in violation of G.S. 14-256. This statute provides:
"If any person shall break any prison, jail or lockup maintained by any county or municipality in North Carolina, being lawfully confined therein, or shall escape from the lawful custody of any superintendent, guard or officer of such ...