State v. Thomas , 31 N.C. App. 52 ( 1976 )

PARKER, Judge.

In Case No. 75CR4924 defendant was tried and convicted for violation of our “safecracking” statute, G.S. -14-89.1. This statute, originally enacted by Ch. 653 of the 1961 Session Laws and subsequently amended by Ch. 235 of the 1973 Session Laws, is as follows:

“G.S. 14-89.1. Safecracking d'nd safe robbery. — Any person who shall, by the use of explosives, drills, or tools, unlawfully force open or attempt to force open or ‘pick’ the combination of a safe or vault used for storing money or other valuables, shall, upon conviction thereof, receive a sentence, in the discretion of the trial judge, of not less than two years nor more than 30 years imprisonment in the State penitentiary.”

There was evidence in this case that defendant-unlawfully opened the safe, but there was no evidence that this was done “by the use of explosives, drills, or tools.” On the contrary, the only reasonable inference which may be drawn from the evidence is that the safe was opened simply by turning the dial on the combination “one-half turn back to zero,” thereby releasing the lock and freeing the door handles so that they could be turned and the doors could be pulled open. The question presented is whether such evidence was sufficient to support the verdict in Case No. 75CR4924. We hold that it was not and that defendant’s motion for dismissal in that case should have been allowed.

Initially, we note that when the statute,' G.S. 14-89.1, is considered from the point of view of grammatical construction, the phrase “by the use of explosives, drills, or tools” qualifies all that follows in the sentence. The same is true of the word “unlawfully,” as that word appears in the statute. Certainly, it seems clear that the General Assembly intended that the word “unlawfully” modify not only the phrase, “force open or attempt to force open,” but that it also modify the phrase which follows, “or ‘pick’ the combination of,” a safe or vault. When the same normal rules of grammatical construction are applied, it seems equally clear, from the position of the words in the sentence, that the General Assembly intended the phrase, “by the use of explosives, drills, or tools,” to apply to both phrases which follow. This interpretation is also supported when customary rules of statutory construction are applied. The offense described in G.S. 14-89.1 is a creature of the statute, and it is a well established rule of statutory construction that “[s]tatutes creating criminal offenses must be strictly construed.” State v. Ross, 272 N.C. 67, 69, 157 S.E. 2d 712, 713 (1967). Strictly construed, G.S. 14-89.1 makes it a criminal offense to “pick” the combination of a safe or vault by the use of drills or tools. Indeed, the very word “pick,” standing alone, strongly suggests the use of a tool. Used as a transitive verb with a lock as its object, the word “pick” is defined in Webster’s Third New International Dictionary as meaning, “to turn (a lock) with a wire or a pointed tool instead of the key esp. with intent to steal.” (Emphasis added.) Thus, dictionary definition, as well as application of normal rules of grammatical and statutory construction, leads to the conclusion that the statutory offense created by G.S. 14-89.1 is committed only when the acts proscribed are committed “by the use of explosives, drills, or tools.” The very severity of the penalty which was authorized for a conviction of violating the statute, originally life imprisonment and now 30 years imprisonment, strongly suggests that the General Assembly did not intend the statute to apply to one who, though acting unlawfully, somehow acquires knowledge of the combination to a safe and opens it simply by turning the dial.

The State in this case has relied upon the following language which appears in the opinion in State v. Pinyatello, 272 N.C. 312, 314, 158 S.E. 2d 596, 597-8 (1968) :

“Construing G.S. 14-89.1, it is manifest that the statute condemns (1) the felonious opening or attempting to force open a safe or vault used for storing money or other valuables by explosives, drills, or other tools, or (2) to pick feloniously the combination of a safe or vault used for storing money or other valuables. The felonious picking of a combination of a safe or vault is a safe robbery condemned by our statute. The word ‘pick’ has a distinct meaning well understood by policemen, laymen, and courts alike.”

In State v. Pinyatello, swpra, the indictment charged that the defendant forced open a safe “by the use of an axe and two crowbars and other tools,” and the evidence showed that the door to the safe had been torn off and that both the interior and exterior of the safe were totally demolished. The language in the opinion quoted above was directed toward the appellant’s contention that the offense created by G.S. 14-89.1 could only occur if the safe opened was one which had a combination. The court rejected that contention and held the statute applicable whether or not the safe involved had a combination. The court was not called upon to decide, and did not hold, that the offense created by the statute could be committed without “the use of explosives, drills, or tools.” Moreover, in making the statement that “[t]he word ‘pick’ has a distinct meaning well understood by policemen, laymen, and courts alike,” the court did not intimate that the “well understood” meaning was different from that contained in the dictionary.

G.S. 14-89.1 has been in effect since 1961. During the ensuing years our Supreme Court has had occasion to consider approximately 14 cases, and this Court approximately 10 cases, in which a violation of the statute was involved. We have carefully reviewed all of these cases and have not found one in which conviction was sustained where the evidence failed to show use of “explosives, drills, or tools.” We now hold that such evidence is essential to sustain a conviction for violation of G.S. 14-89.1.

As to Case No. 75CR4925, in which defendant was convicted of felonious larceny, we find the evidence ample to sustain the verdict. We have carefully examined all of defendant’s assignments of error, and find no error such as to warrant disturbing the judgment entered in that case.

The result is:

In Case 75CR4924 the judgment is vacated.

In Case 75CR4925, no error.

Judge Arnold concurs.