Commonwealth v. Tivnon

Bigelow, J. 1. There is nothing in the nature of the offence with which the defendants stand charged, which renders it several, so that it cannot be committed in concert by two or more persons. It does not resemble perjury and other similar crimes, which must necessarily be the distinct act of one individual, in the commission of which another cannot join; but, like most criminal acts, it may well be the joint act of two or more. The possession of burglarious implements with a guilty intent is the gist of the offence set out in the indictment. Such possession may be joint as well as several; and where the guilty intent of several is manifested by their joint act, it becomes a joint offence. In such cases, by the well settled rule of criminal pleading, all who join in the commission of the act may be indicted either jointly or separately. 2 Hale P. C. 173. Regina v. Atkinson, 1 Salk. 382. The offence charged in the present case is analogous to that of having in possession counterfeit coin with a guilty intent, of which two or more persons acting in concert may be jointly indicted. Regina v. Rogers, 2 Mood. 85. Regina v. Williams, Car. & M. 259. The allegation in the indictment sufficiently sets forth that the tools or implements were in the possession of both the defendants, and charges a joint offence in apt words and according to the precedents. 2. As the offence charged in the indictment was one into which time did not enter as an essential ingredient, it was sufcient to allege it on any day after the passing of the St. of 1853, c. 194, which created the offence, and before the finding of the indictment. Under this allegation it was competent to prove the commission of one offence by both defendants on any [380] day after the statute took effect and before the indictment was found. Archb. Crim. Pl (5th Amer. ed.) 40, 41. 3. The gist of the offence being the possession of the burglarious implements with an intent to use them for the purpose of breaking and entering a shop, building, safe or other depository of money or goods, in order to steal therefrom, it was sufficient to allege such possession with the guilty intent, without further specific averment. The offence was complete when the tools were procured with a design to use them for a burglarious purpose. A general intent was sufficient. It was not necessary to allege or prove an intent to use them in a particular place, or for a special purpose, or in any definite manner. In this respect, the offence charged is similar to that of having in possession counterfeit bills with intent to utter them as true. It is never necessary to aver or prove the time, place or manner in which the bills were intended to be uttered. Archb. Grim. PL 513. 4. The indictment properly charges that all the instruments or tools named therein were adapted and designed for the unlawful purposes specified. But it was not necessary to prove either that the defendants were possessed of all the implements described, or that all of them were designed or adapted to effect the objects charged in the indictment. The offence was the same, and the like punishment was prescribed, whether the defendants were found guilty of having in their possession, with an unlawful intent, any one or all of the implements specified. The number of articles alleged was therefore wholly immaterial. It was no variance if only one of them was proved to have been in the possession of the defendants as charged, and such proof was sufficient to constitute the entire offence set out in the indictment. Archb. Grim. Pl. 49. 5. Nor do we think it necessary, in order to create the offence which the statute is designed to punish, that it should appear that the tools or implements were originally made or intended for an unlawful use. If they are suitable for the purpose, so that they can be used to break and enter burglariously, it is wholly immaterial that they were also designed and adapted for [381] honest and lawful uses. A chisel or centre-bit, though a tool in common use for ordinary purposes, is quite as efficacious in the hands of a burglar to cany out his felonious intent, as a jimmy or a lock-picker, which is made for the sole purpose of being used to break and enter buildings. 6. A common design or enterprise between the defendants being first proved, it was clearly competent to admit the declarations of one of them, in relation to the joint undertaking, to affect both. This rule is not confined to cases where a conspiracy is charged, but it is applicable wherever a combination to effect a particular object is established. It rests on the principle that each is agent for the other in all matters relating to the common object, and the acts and declarations of one in furtherance of such object are admissible to affect the principal as well as the agent. 1 Greenl. Ev. § 111, and cases cited. 7. We have no doubt that proof of possession by the defendants of any of the implements named in the indictment, either actual or constructive, would be sufficient evidence to warrant a conviction, if accompanied by the guilty intent. But what is meant by constructive possession ? It would be proved by evidence that the implements were held by one for himself and as agent for another; 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 another; or that they were deposited in some place mutually agreed on, to which either could resort at pleasure. These and other instances which might be stated would constitute constructive possession. But the instruction given to the jury in the present case on this point went further. It not only authorized the jury to convict the defendants on proof of a constructive possession, but it warranted a conviction of both, although there was evidence of possession, either actual or constructive, by one only. The instruction was, that the possession of one, both intending to use them in a joint undertaking, was the possession of both. The error in this proposition is, that it makes the guilty intent, without possession, the sole ingredient in the offence; whereas the statute punishes such intent only when it is connected [382] with possession of the burglarious implements. Under the instruction given to the jury, a person might be convicted on proof that he intended to unite in a joint undertaking or enterprise to commit a burglary before any tools or implements were obtained for the purpose, although, when they were subsequently procured and in the possession of his associate, in order to carry out the preconcerted design, he had abandoned his unlawful intent and had then determined not to use the implements for the purpose for which they were obtained. We are therefore of opinion that there was a misdirection on this point, and that there must be a new trial. Exceptions sustained.