ARK.] GOSSETT V. STATE 593 JIMMY C. GOSSETT ET AL V. STATE 414 S. W. 2d 631 Opinion delivered May 15, 1967 BURGLARY-POSSES SION OF BURGLAR'S TOOLS-PRESUMP TION & BURDEN OF PaooF.—Conviction for possession of burglar's tools reversed where State failed to meet the burden of proving beyond a reasonable doubt that any one of the tools found in appellants' car was designed or commonly used for committin g burglary. [Ark. Stat. Ann. § 41-1006 ( Repl. 1964.] Appeal from Columbia Circuit Court, First Division, Harry Crumpler, Judge; reversed. Brown, Compton & Prewett, for appellant. Joe Purcell, Attorney General; Don, Langston, Asst. Atty. Gen., for appellee. PAITT, WARD, Justice. Edward Easley and Jimmy C. Gossett and his wife were charged with the "crime a possessing burglary tools". Upon trial they were convicted as charged and sentenced to two years in the penitentiary. Appellants were charged and tried under the provisions of Ark. Stat. Ann. § 41-1006 (Repl. 1964) which, in all material parts here, reads: "Any person who . . . has in his custody . . . any
594 GOSSETT v. STATE [242 tools, false key, lockpick, bit, nippers, fuse, force screw, punch drill, jimmy, bit, or any material, implement or other mechanical device whatsoever, adapted, designed or commonly used for breaking into any vault, safe, railroad ear, boat, vessel, warehouse, store, shop, office, dwelling house, or door, shutter, or window of a building of any kind, shall be guilty of a felony, and upon conviction thereof, shall be punished by imprisonment in the penitentiary for not less than [2] y ea's, nor more than ten [10] years." The fact§ are not in dispute. Early one morning a cream colored Buick car was seen parked at Charlie's Drive-In which is located in the City of Magnolia. The occupants of the car appeared to be tampering with a cigarette_machine placed_outside of _the_Drive.In_building. A policeman, who had been promptly notified, apprehended appellants in a Buick car similar to the one above mentioned. There was found in the car a tire tool, two screw-drivers, a lug wrench, and a bar used to remove tires from car wheels. Appellants were arrested, and were charged and convicted as above mentioned. At the close of the State's testimony appellants moved the court to direct a verdict in their favor. The motion was denied, hence this appeal. It is our conclusion that: the court erred in refusing to grant appellants' motion. It appears from the record that all the tools found in appellant q' possession are in common, daily use in connection with the operation of automobiles—except, perhaps, the screw-drivers which are commonly used in homes and shops. The sheriff, who was a witness for the State, testified, in substance: I know what these tools are; they are two screw-drivers, a lug wrench, and a bar that is commonly used to take tires off cars wheels— I carry one in the back end of my car ; most cars are equipped with a lug wrench—I have one in my car; the
ARK.] GOSSETT V. STATE 595 bar is used to mount tires or take tires off of a wheel— that.is the purpose of it ; the screw-drivers are in common use in households and are carried in automobiles. It is true, as shown by the testimony, that any one of the above mentioned tools could be used to pry open a door or break into a house, but so could a pocket knife. Such a showing is not sufficient for a felony conviction under the q tatute previously quoted. The burden was on the State to prove beyond a reasonable doubt that at least one of these "tools" was designed or commonly used in committing burglary. It is our firm conviction that the State failed to meet this burden. The case of Satterfield v. State, 174 Ark. 733, 296 S. W. 63, reversed a conviction obtained under the same statute here involved where the evidence was less favorable to the accused than here. In the cited case the accused had in his car two bolt cutters, four files, one hammer, two Stillson wrenches, a flashlight, and a pistol. In that ease the Court said: "We cannot attribute to the Legislature the intention to prohibit the making, mending, designing, setting up or having in possession of the common. ordinary everyday work tools nf a mechanic, plumber, carpenter, farmer or other person who may require such tools in business, trade or profession. If so, the act would be unconstitutional and void." The State relies on the case of Prather v. State, 191 Ark. 903, 88 S. W. 2d 851. That case, however, is not controlling or even persuasive in this case because the accused had in his possession nitroglycerin. Reversed. BROWN, J., disqualified.
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