
    (33 App. Div. 197.)
    PEOPLE v. THOMPSON.
    (Supreme Court, Appellate Division, First Department.
    August 10, 1898.)
    1. Possession of Burglars’ Tools—Intent to Commit Crime—Evidence.
    Defendant was seen by an officer walking along the streets, “looking at the houses” and in windows in a manner to excite suspicion. He mounted a passing truck, and was presently pursued by the officer. When the officer reached the truck, defendant attempted to hide a burglars’ jimmy in the driver’s seat. He was then placed under arrest, and attempted to escape. He had passed under assumed names. He testified that he was a painter, and that he was on the truck, going home, and denied that he had any intention of committing a burglary. Held, that the question whether the jimmy was in defendant’s possession “under circumstances evincing an intent to use” the same “in the commission of a crime,” within Pen. Code, § 508, making possession of burglars’ tools under such circumstances a misdemeanor, was for the jury.
    2. Criminal Law—Evidence—Relevancy—Accomplices.
    On trial for a misdemeanor, it is not error to exclude testimony of proceedings against an accomplice of accused.
    8. Same—Sentence—Second Offense-Evidence.
    Where the fact of a former conviction serves to increase the grade of an offense (Pen. Code, § 508), evidence of efforts at reformation by accused since a former conviction is immaterial.
    Appeal from court of general sessions, New York county.
    Edward Thompson, otherwise called Edward Reynolds, was convicted of a felony, as a second offense, and he appeals.
    Affirmed.
    Argued before VAN BRUNT, P. J., arid RUMSEY, McLAUG-HLIN, and O’BRIEN, JJ.
    Ambrose H. Purdy, for appellant.
    Charles Le Barbier, for respondent.
   O’BRIEN, J.

It appeared that thé defendant had been previously indicted and convicted, upon his plea of guilty, of burglary in the third degree, and sentenced to one year in the penitentiary, from which he had been released-on December 20,1897. The police officer who made the arrest testified that on December 30, 1897, at about 2 o’clock in the afternoon, he saw the defendant, in company with another man, on the east side of Amsterdam avenue, in the middle of the block between Seventy-Third and Seventy-Fourth streets, “looking at the houses.” The two men went to the southeast corner of Seventy-Fourth street, and stopped about half a minute. The defendant’s companion observed the policeman, and the pair moved on. The policeman quickened his steps, and got within three feet of them, and: heard the other man say to the defendant, “It must be on the next block above.” The defendant had a card in his hand. They walked-on north as far as a tailor shop between Seventy-Fourth and Seventy-Fifth streets. As the officer passed, the defendant was pointing out a pattern of cloth in the window. When the officer had got to the middle of the next block, between Seventy-Fifth and Seventy-Sixth-streets, he looked back, and both men were watching him. He walked on a little further, and, looking back, saw them crossing to-the north side of Seventy-Fifth street, and walk west towards the Boulevard. The policeman followed them to the Boulevard, and saw them on a truck going down the Boulevard. He got into a grocery wagon, and ordered the boy to overtake the truck. The wagon came up with the truck at Seventy-Third street, near Columbus avenue, and, when within 25 feet of them, the defendant recognized the officer, and spoke to his companion, who was standing in the center of the truck. The officer mounted the tail end of the truck. The defendant ran towards the driver’s seat, on which were a pair of blankets, and endeavored to thrust a piece of iron, with sharp, pointed prongs, under the blankets. The policeman grabbed him with his left hand, and pulled him back, and put his other hand over to where the instrument was concealed; but the defendant grabbed it, and tried to-throw it under the seat. The officer grasped his arm and drew him back, and the instrument fell out of his hand, and into the driver’s lap. The driver handed the tool to the officer, and he placed the defendant and the other man under arrest. The defendant jerked away from the officer, and ran towards the front of a cable car, but was retaken. The other man escaped. Two witnesses for the people testified that the iron instrument referred to, commonly called a “jimmy,” is of the kind used by burglars in forcing doors leading into dwellings. The defendant took the stand in his own behalf, giving the name of Maurice Loeha, which he said was his right name, but that he had changed it to Edward Thompson when he was arrested before, and that in the station house, when arrested upon the present charge, he had assumed the name of Edward Beynolds. His story was that he-was a painter by trade; had been uptown, looking for work, and had got on this truck on his way home; that he never saw the iron tool' until the officer made an effort to grab it from under the blankets on the seat; that he did not know he was a policeman, but thought he - was a drunken man who was going to assault him with the instrument, and so he tried to make his escape; that the officer demanded possession of the instrument from the truck driver, but the driver told him it was his, or belonged to his firm, or was only a sample, and did not give it up until the policeman threatened to place him, also, under arrest. He denied that the tool belonged to him, or that he had any intention of committing a burglary with it, or that he ever saw it until, on the truck, the officer made a move to take it. The jury brought in a verdict of guilty. The defendant claims that the evidence was insufficient, that the court erred in certain rulings excluding evidence, and that, assuming the charge as proved (that the defendant, an ex-convict, was arrested with burglars’ tools in his possession), the circumstances did not evince a present intention, as the statute requires, of committing a crime.

The first question is presented by a motion made at the close of the people’s case, and renewed at the close of the entire case, that the court advise the jury to acquit the defendant on the ground that the evidence was insufficient to warrant a conviction. To dispose intelligently of this, as of the other questions involved, a reference to the section of the Penal Code upon the subject is necessary. It is provided, among other things, in section 508 of the Penal Code, that:

“A person who makes or mends, or causes to be made or mended, or has in his possession in the day or nighttime, any engine, machine, tool, 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.”

It is not disputed but that the question whether the prisoner had or had not in his possession a “jimmy,” concededly a tool or implement commonly used for the commission of burglary, was, upon the evidence, properly submitted to the jury; but it is contended that the evidence did not tend to show that it was in his possession “under circumstances evincing an intent to use or employ” it “in the commission of a crime.” The fair inference from the fact found, that he had the instrument in his possession, is that he had it just before he mounted the truck, and while, with his companion, he was engaged in walking up Amsterdam avenue, looking at the houses. What assistance could be afforded him by such an instrument in his walk is not made to appear, and the circumstances detailed of his excursion left his intent in so carrying a jimmy a question for the jury. His explanation that he was a painter by trade did not at all help him, because it is self-evident that a jimmy would be of no assistance in painting. This, we think, was clearly a question of fact, which has been found against the defendant by the jury, and with their verdict we find no legal ground to interfere.

With regard to rulings upon evidence, we do not think that any error was committed. The question asked by the defendant’s counsel of the prisoner, whether or not the next day, in the police court, the officer did not make a charge against his companion, if answered, might have been harmless; but certainly it was not error to exclude it, because it was entirely immaterial. So also with respect to the ruling which excluded a question directed to showing the defendant’s efforts to reform.

Starting, therefore, with the fact that it was conceded that the defendant had been previously convicted of burglary in the third degree, and the jury having found that he was in possession of a jimmy with intent to commit a crime, upon evidence which justified the court in submitting those questions to the jury, which was done in a full and fair charge, to which no exception was taken, we think that the judgment of conviction entered thereon should be affirmed. All concur.  