
    The People v. Sophie Lyons.
    (Court of General Sessions, New York,
    October, 1896.)
    Larceny — Shoplifter’s bag.
    What is known as a shoplifter’s bag is not an instrument designed, adapted and commonly used for the commission of larceny, within section 508 of the Penal Code.
    Demurrer to an indictment.
    On September 23, 1896, Sophie Lyons, the defendant in this criminal action, was indicted by the grand jury of this county under section 508 of the Penal Code, she being charged by the indictment with having a bag in her possession which was an instrument designed, adapted and commonly used for the commission of the crime of larceny. ' •
    To that indictment the defendant filed a demurrer upon the grounds that the facts stated in "the indictment .did not constitute or set forth a crime. ' •
    The section of the Penal Code upon which the indictment was based is as follows:
    
      “ § 508. A person who makes or mends, or causes to be made' or mended, or has in his possession in the day or night time, any engine; machine, tool, false key, pick-lock, bit," nippers or implements adapted, designed or commonly used for the commission of burglary; larceny or other crime, under circumstances evincing an intent to use or. employ, or allow the same to be used or employed, in the commission, of a crime, or knowing that the same are intended to be so used, shall be guilty of a misdemeanor, and if he has been previously convicted- of any crime he is guilty of a felony.”
    Frederick B. House, for defendant.
    George Gordon Battle, assistant district attorney, for People.
   McMahon, J.

It is. a little doubtful to my mind whether the question as to whether the bag such as is described here would, come under the definition of the statute as being an implement is not a question of fact for a jury to determine.

On the other hand, it is a question of law in this aspect: What was. the intent of the-legislature in enacting this particular section? Eow, this section creates a new statutory crime, and, of course,, must be construed strictly as against the People, and literally as it affects the individual. ■

The caption of the section is “Possessing burglar’s instruments,” etc'., and the section reads:

“A person who makes or mends, or causes to be made or mended, or has in his possession in the day or night time, any engine, machine, tool, false key,' pick-lock, bit, nippers or - implements adapted, designed or commonly used for the commission of burglary,” etc. '

In the ordinary acceptation of the words of the English language, I think no one would naturally and in ordinary conversation describe á muslin bag as an implement or a tool or an engine or an instrument.

The question of law, however, is: Did the legislature, in passing that enactment, mean to include under the somewhat generic word “ implement ” a bag such as is described in this indictment?

In another section of the Penal Code, where there is a description of the manner and method by which an offense may be committed (§ 218, par. 4), the following language is used:

“ Willfully and wrongfully assaults another by the use of a weapon or other instrument or thing likely to produce grievous bodily harm.” If the. legislature, in the section under consideration, had employed those words, “ “ or thing,” it' would most surely cover the offense charged here, ' and this bag' would come under that description; and from the fact that the legislature in one section of the same enactment, the Penal Code, uses a generic word that covers every possible article or contrivance, and in another uses a word of much more limited significance, it is fair to infer that the distinction made was intentional.

In this aspect of the case (while in the other I woiild prefer to submit to the jury as one of fact the question as toiwhether this bag is an implement adapted, designed or "commonly used for the commission of larceny or other crime) I will hold that it does not appear from the context that the legislature had in view that particular thing or contrivance in making the enactment under which the indictment is laid; and I, therefore, sustain the demurrer.

Demurrer sustained.  