(Ga. L. 1910, p. 135, §§ 1, 2; Code 1933, § 26-2701; Code 1933, § 26-1602, enacted by Ga. L. 1968, p. 1249, § 1.)
Law reviews.- For annual survey on criminal law and procedure, 42 Mercer L. Rev. 141 (1990).
JUDICIAL DECISIONS
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 26-2701 are included in the annotations for this Code section.
Section not unconstitutional for vagueness.
- Language of the statute conveys sufficiently definite warning as to the conduct forbidden, measured by common understanding and practice. Thus, the statute establishes a reasonably certain standard of conduct and is not unconstitutional for vagueness. Hogan v. Atkins, 224 Ga. 358, 162 S.E.2d 395 (1968).
Firearm as tool.
- Evidence that defendant unlawfully entered the victim's residence with intent to commit aggravated assault therein, and was in possession of a gun while doing do, was sufficient to uphold convictions for aggravated assault, burglary, and possession of a firearm/knife during the commission of a felony. Simmons v. State, 262 Ga. App. 164, 585 S.E.2d 93 (2003).
Elements of crime.
- Two elements are required for conviction: (1) possession of the tools and implements, and (2) intent to use these tools and implements in the commission of a crime or knowing that the same are intended to be so used. Hogan v. Atkins, 224 Ga. 358, 162 S.E.2d 395 (1968).
Offense not necessary element in or part of burglary.
- Offense of possessing burglary tools is not a necessary element in, and does not constitute an essential part of, the offense of burglary. Shelly v. State, 107 Ga. App. 736, 131 S.E.2d 135 (1963).
Merger of offenses.
- Even though the crimes of conspiracy and possession of tools for the commission of a crime do not merge as a matter of law, where the form of the indictment required proof of the possession of tools in order to prove the conspiracy, the offenses merged as a matter of fact. Green v. State, 240 Ga. App. 377, 523 S.E.2d 581 (1999).
Even though a two-by-four was not the kind of tool, the possession of which O.C.G.A. § 16-7-20 was meant to penalize, defendant's improper conviction was harmless since the possession of criminal tools conviction was merged with the armed robbery convictions for purposes of sentencing. Garrett v. State, 263 Ga. App. 310, 587 S.E.2d 794 (2003).
Rule of lenity applied.
- In a prosecution for the possession of tools for the commission of a crime, which was a felony, while the evidence presented against the defendant was sufficient to support the jury's verdict, because the defendant's conduct could also have been charged as a misdemeanor offense of possession of a drug related object, pursuant to O.C.G.A. § 16-13-32.2(a) and the rule of lenity, the felony conviction was reversed, and the matter was remanded for a resentencing on the misdemeanor offense. Washington v. State, 283 Ga. App. 570, 642 S.E.2d 199 (2007).
Probable cause found for arrest.
- After stopping a car which was driving slowly in a shopping center parking lot because the car had a defective headlight, officers found a screwdriver in a pat down of one of the defendants, and the defendants made misleading claims as to how long the defendants had been in the parking lot, the officers had probable cause to arrest the defendants for loitering and prowling and for possession of tools for the commission of a crime. Evans v. State, 216 Ga. App. 21, 453 S.E.2d 100 (1995).
Conviction for burglary cannot support plea of autrefois convict to indictment for possessing burglary tools. Shelly v. State, 107 Ga. App. 736, 131 S.E.2d 135 (1963).
Possession of burglary tools and burglary are separate and distinct offenses, and conviction of one is not an essential part of conviction of the other. Butler v. State, 130 Ga. App. 469, 203 S.E.2d 558 (1973); McKinney v. State, 155 Ga. App. 930, 273 S.E.2d 888 (1980).
Evidence was sufficient to support defendant's conviction for possession of tools for the commission of a crime in violation of O.C.G.A. § 16-7-20 since bolt cutters and a crow bar were found in a truck containing a four-wheeler that had been stolen from a car dealership; further, evidence indicated that the defendant was with the truck that had the four-wheeler, pry marks on the dealership doors were found, and the two implements were introduced into evidence. Norwood v. State, 265 Ga. App. 862, 595 S.E.2d 537 (2004).
Crime not completed until intent shown.
- Crime of possessing burglary tools is not completed until the intent to use or employ them in the commission of a crime is shown. Croker v. State, 101 Ga. App. 742, 115 S.E.2d 413 (1960).
Intent is matter of fact for jury.
- Intent in a prosecution under former Code 1933, § 26-2701 (see now O.C.G.A. § 16-7-20) was not a presumption of law, but was a matter of fact for the jury. Farlow v. State, 59 Ga. App. 881, 2 S.E.2d 500 (1939).
Ken of average juror.
- In the vast majority of cases construing O.C.G.A. § 16-7-20, whether a tool is commonly used in the commission of a crime is within the ken of the average juror and, in such cases, expert testimony is not required; jurors are entitled to use the jurors' knowledge and experience to decide both elements set out in the Code section, common use and intent. Kenemer v. State, 329 Ga. App. 330, 765 S.E.2d 21 (2014).
Inference of possession with criminal intent.
- In prosecution under former Code 1933, § 26-2701 (see now O.C.G.A. § 16-7-20), the fact that the defendant was in possession of the named tools, and the further fact that defendant had on two other occasions used similar tools in committing a burglary, will authorize an inference that defendant's possession was with criminal intent. Farlow v. State, 59 Ga. App. 881, 2 S.E.2d 500 (1939).
Electronic scales and baggies found in the defendant's apartment were tools commonly used in the commission of the crime of possession of marijuana with intent to distribute. Russell v. State, 243 Ga. App. 378, 532 S.E.2d 137 (2000).
Cell phones as instrumentalities to commit crime.
- Defendant's conviction for possession of cell phones as instrumentalities to commit a crime was supported by sufficient evidence based on finding the defendant with two cell phones, an officer testifying that based upon experience and training the possession of multiple cell phones was consistent with someone involved in drug distribution and, at the time of the defendant's arrest, the defendant also possessed 27 rocks of crack cocaine, over $272 in U.S. currency, and a digital scale. Bryant v. State, 320 Ga. App. 838, 740 S.E.2d 772 (2013).
Possession is possession of all in conspiracy.
- When two or more persons enter into a conspiracy to commit burglary, and in attempting to carry out such felonious design either one of them has in the defendant's possession burglary tools, such possession is the possession of all, and each is guilty of a violation of former Code 1933, § 26-2701, prohibiting and punishing the possession of such tools. Kryder v. State, 57 Ga. App. 200, 194 S.E. 890 (1938).
Possession of burglary tools by one conspirator is possession by all.
- When two or more persons enter into a conspiracy to commit burglary, and in attempting to carry out such felonious design either of the people has in their possession burglary tools, such possession is the possession of all, and each is guilty of a violation of O.C.G.A. § 16-7-20, prohibiting and punishing the possession of such tools. Solomon v. State, 180 Ga. App. 636, 350 S.E.2d 35 (1986).
Possession of burglary tools.
- When there was evidence that the defendant and a codefendant committed the burglary, each was responsible for the acts of the others in carrying out the common purpose; thus, there was sufficient evidence to support the defendant's conviction for possession of tools for the commission of burglary. Jones v. State, 261 Ga. App. 698, 583 S.E.2d 546 (2003).
Evidence that the defendant's sibling possessed the tools used in the attempted burglary was sufficient to support the defendant's conviction for possession of tools for the commission of a crime since each was responsible for the acts of the other in carrying out the common purpose as if that person personally had committed the act. Flanagan v. State, 265 Ga. App. 122, 592 S.E.2d 894 (2004).
Discovery of a hammer outside the shattered glass of the front door of a car dealership that the defendant was caught burglarizing, together with the defendant's admission that the defendant used a hammer to break the glass, was sufficient to support a conviction for possession of tools for the commission of a crime. Johnson v. State, 291 Ga. App. 253, 661 S.E.2d 642 (2008).
While tools such as a hammer, pair of pliers, screwdriver, hatchet, and chisel could be used in the commission of a burglary, these tools are not "commonly used in the commission of burglary" as required by O.C.G.A. § 16-7-20(a). Burnette v. State, 168 Ga. App. 578, 309 S.E.2d 875 (1983).
Evidence of defendant's previous use of similar tools.
- In the trial of one accused of possessing burglary tools with intent to commit a crime therewith, it was not error to allow evidence that the defendant had sometimes previously used similar tools in the commission of other burglaries. Shelly v. State, 107 Ga. App. 736, 131 S.E.2d 135 (1963).
Body armor was insufficient evidence for conviction.
- Trial court erred in denying the defendant's motion for directed verdict of acquittal because the evidence was insufficient to support the defendant's conviction for possession of tools for the commission of a crime for lack of evidence showing that body armor was a tool commonly used in the commission of attempted armed robbery pursuant to O.C.G.A. § 16-7-20(a). Nyane v. State, 306 Ga. App. 591, 703 S.E.2d 53 (2010), cert. denied, No. S11C0420, 2011 Ga. LEXIS 538 (Ga. 2011).
Fuel equipment used in theft not subject to forfeiture.
- Because fuel equipment used in the defendant's crime of theft of diesel fuel did not constitute contraband per se, and there was no statutory authority supporting retention by the sheriff of the equipment after the defendant was discharged, the equipment was ordered returned to the defendant pursuant to O.C.G.A. § 17-5-54(a)(1), (d). Although possession of burglary tools was criminalized by O.C.G.A. § 16-7-20, the statute did not declare those tools subject to forfeiture. Norman v. Yeager, 335 Ga. App. 470, 781 S.E.2d 580 (2016).
Admission of testimony of state's witnesses as to the defendant's admissions, voluntarily made by the defendant (after the defendant pled guilty and had been brought into court for the purpose of having sentence passed upon the defendant), of defendant's commission of burglaries in Ohio and other states, was proper in a trial for possession of burglary tools held after a guilty plea had been withdrawn. Heller v. State, 60 Ga. App. 552, 4 S.E.2d 413 (1939).
Possession of altered credit cards.- Evidence was sufficient to support the defendant's convictions for financial transaction card fraud and possession of tools for the commission of a crime as the defendant was not merely present during the criminal activity as the two financial transaction card forgery counts pertained to the credit cards with embossed numbers were found in the driver's door pocket of the defendant's car, which the defendant was driving at the time of the stop. Riley v. State, Ga. App. , S.E.2d (July 21, 2020).
Evidence was sufficient to support conviction where the testimony established that the defendant possessed a ring of keys, several of which fitted various Coca-Cola vending machines, and that defendant was using one of the keys to open one of the machines and to extract money from it when apprehended. Cunningham v. State, 128 Ga. App. 789, 197 S.E.2d 871 (1973).
Evidence of defendant's unexplained presence in possession of tools behind a closed business office was sufficient to support conviction. Kennon v. State, 232 Ga. App. 494, 502 S.E.2d 330 (1998).
Evidence that defendant had a shank, which he held next to his wife as he had forcible intercourse with her, authorized the jury to convict him of this crime. Garcia v. State, 240 Ga. App. 53, 522 S.E.2d 530 (1999).
Evidence that defendant had a flashlight when arrested and an accomplice's testimony that defendant took the flashlight with defendant when defendant and the accomplice entered the house to commit the burglary was sufficient to sustain defendant's conviction for possession of tools for the commission of a crime, but the conviction had to be vacated and the case had to be remanded to the trial court for it to determine whether defendant validly waived defendant's right to a jury trial before being tried on that charge. Jenkins v. State, 259 Ga. App. 47, 576 S.E.2d 44 (2002).
Testimony from an eyewitness at the scene that the eyewitness heard suspicious noises in the adjacent government offices, which were closed for business for the day, then saw defendant flee from police while removing items from defendant's pocket, when coupled with the discovery of 169 quarters which were found in the immediate vicinity of the tree where defendant was apprehended, the presence of tools at the crime scene, visible pry marks on the door which defendant attempted to open, and the destroyed gum ball machines, authorized the jury to infer that although defendant did not have the tools in defendant's possession, defendant used them to break into the offices, steal the money from the destroyed machines, and attempt to flee the police and avoid apprehension; thus, defendant's convictions for burglary, possession of tools for the commission of a crime, interference with government property, and obstruction of an officer were all affirmed. Harris v. State, 263 Ga. App. 866, 589 S.E.2d 631 (2003).
Defendant was properly convicted under O.C.G.A. § 16-7-20 after being seen exiting a new, unoccupied home still under construction because defendant's vehicle contained numerous tools that were characterized as being of the type commonly used for burglaries and the evidence was sufficient based on the time of night, defendant's effort to misrepresent defendant's ownership of the vehicle, the vehicle's opened rear door, defendant's incongruous explanation for defendant's presence, and the unauthorized entry of the house. Anderson v. State, 264 Ga. App. 362, 590 S.E.2d 729 (2003).
Trial court properly allowed the jury to determine whether defendant should be convicted of possession of tools for the commission of a crime, possession of amphetamine, and possession of cocaine with intent to distribute because other people in a car defendant drove had equal access to drugs and scales that police found, and the appellate court found that the evidence was sufficient to sustain defendant's convictions. Dowdy v. State, 267 Ga. App. 598, 600 S.E.2d 684 (2004).
Evidence was sufficient to support defendant's conviction for possession of tools for the commission of a crime where a store employee testified that the employee encountered defendant in the store in the early morning hours trying to pry open the lock on a jewelry counter with a knife, and a police officer testified that knives were sometimes used to commit burglaries. Standfill v. State, 267 Ga. App. 612, 600 S.E.2d 695 (2004).
Jury was authorized to find defendant guilty of possession of tools for the commission of a crime where defendant's accomplice testified that defendant removed an automatic teller machine from a bank with a crowbar, and this testimony was sufficiently corroborated by defendant's possession of crow bars, a sledgehammer, a screwdriver, a flashlight, and a ski mask found in defendant's car, the fact that defendant was found near the scene of the bank burglary covered in grease that could have come from a bank machine, the fact that defendant was sweaty, as if defendant had been working, and the fact that pine straw similar to pine straw in front of burglarized bank was found in defendant's car. McNair v. State, 267 Ga. App. 872, 600 S.E.2d 830 (2004).
Evidence that defendant had in a pocket a screwdriver, a flashlight, and a pair of cloth gloves at the time police arrived to find the house owner holding defendant at gunpoint after finding that defendant had attempted to break into the house in order to steal valuable construction tools inside was sufficient to support defendant's conviction for possession of tools for the commission of a crime; the state did not have to show that defendant actually held the tools, as the fact that they were on defendant's person was sufficient to show that defendant possessed them. Weeks v. State, 274 Ga. App. 122, 616 S.E.2d 852 (2005).
Evidence was sufficient for a jury to find defendant guilty of possessing tools for the commission of a crime, as defendant leased a house in which a widespread methamphetamine manufacturing operation took place, which created a strong chemical smell immediately apparent upon entering the house, and defendant tested positive for methamphetamine, circumstantially linking defendant to the manufacturing process and undermining the claim that defendant was unaware of the activity. Kirby v. State, 275 Ga. App. 216, 620 S.E.2d 459 (2005).
Because witnesses saw the defendant come and go from an empty mobile home and heard the defendant brag about a burglary, and the mobile home's back door had pry marks on the door that were consistent with the defendant's knife, there was sufficient evidence to convict the defendant of burglary and possession of criminal tools under O.C.G.A. §§ 16-7-1(a) and16-7-20(a). Barrow v. State, 275 Ga. App. 522, 621 S.E.2d 537 (2005).
While the defendant, a passenger in a pick-up truck seen at a burglary scene, and the truck driver both claimed that the defendant was passed out while the driver committed the burglary without the defendant's knowledge, another witness saw the truck outside the dock and two people cutting the chain, an officer heard two car doors shut and an engine start at the scene right before the officers arrived, and the defendant was not passed out when the officers intercepted the truck; in light of the evidence that the bolt cutters were used in the burglary and the bolt cutters were found in the front seat of the truck in which the defendant and the driver were intercepted, the evidence was sufficient to convict the defendant of possession of tools for the commission of a crime. Spradlin v. State, 279 Ga. App. 638, 631 S.E.2d 828 (2006).
Along with items found in the defendant's vehicle, which items had been stolen from the victims' vehicles, and the defendant's presence at the crime scene where cars were broken into with the kind of tools found in the defendant's vehicle, the evidence was sufficient to sustain a conviction for possession of tools for the commission of a crime. Walker v. State, 281 Ga. App. 94, 635 S.E.2d 577 (2006).
Given the evidence connecting the drug paraphernalia found on the defendant's person to the use and distribution of cocaine, the jury was authorized to find the defendant guilty of possessing tools for committing a crime. Lipsey v. State, 287 Ga. App. 835, 652 S.E.2d 870 (2007).
With regard to a defendant's convictions for burglary and possession of tools for the commission of a crime, there was sufficient evidence to support the convictions based on the trial testimony of two accomplices, who testified that the defendant directly participated in the burglaries with the accomplices as such evidence was sufficient and established corroboration. Dyer v. State, 298 Ga. App. 327, 680 S.E.2d 177 (2009).
There was sufficient evidence to support convictions for trafficking in cocaine and possession of tools for the commission of a crime, O.C.G.A. §§ 16-7-20 and16-13-31, when narcotics and an electronic scale were found in the defendant's residence, and although the defendant did not own the residence, the defendant resided there for the previous five years and there was a lack of evidence at the home of any other persons residing therein. Further, the items were well hidden within the premises, the defendant used a closed circuit surveillance system to monitor the home, and the defendant possessed a substantial amount of cash at the time of the search. Brown v. State, 307 Ga. App. 99, 704 S.E.2d 227 (2010).
There was sufficient evidence to support the defendant's conviction for possessing tools for the commission of a crime based on eyewitness testimony and a videotape showing the defendant with a baby stroller filled with contents taken from a store. Fitzpatrick v. State, 317 Ga. App. 873, 733 S.E.2d 46 (2012).
Circumstantial evidence, including the defendant's unusual behavior before the traffic stop, the fact that the defendant was wearing socks over shoes and inexplicably removed both while handcuffed during the transport to jail, the contradictory statements to police, and the defendant's prior convictions for burglary and possession of tools for the commission of a crime, along with the tools found in the defendant's possession, supported a conviction for possession of tools for the commission of burglary. Sutton v. State, 338 Ga. App. 724, 791 S.E.2d 618 (2016).
Evidence sufficient to convince rational trier of fact of existence of essential elements of crime. Alexander v. State, 166 Ga. App. 233, 303 S.E.2d 773 (1983); Manous v. State, 205 Ga. App. 804, 423 S.E.2d 721 (1992); Cook v. State, 226 Ga. App. 113, 485 S.E.2d 595 (1997).
Evidence insufficient to support conviction.
- State failed to prove beyond a reasonable doubt that the defendant possessed the methamphetamine with intent to distribute, thereby making it clear that the state also failed to establish beyond a reasonable doubt that the defendant possessed the digital scale with the intent to commit the crime of possession of methamphetamine with intent to distribute and requiring reversal of the conviction for possession of tools for the commission of a crime. Muttalib v. State, 335 Ga. App. 514, 782 S.E.2d 300 (2016).
Evidentiary issues did not warrant new trial.
- Because the state's evidence sufficiently showed the first defendant's joint constructive possession of methamphetamine beyond mere spatial proximity, and the first's defendant's act of testifying for the state without a promise of leniency or immunity did not unfairly prejudice the second defendant at the expense of that defendant's constitutional right not to testify, their convictions for trafficking in methamphetamine and possession of tools for the commission of a crime were upheld on appeal; thus, the trial court did not err in denying both defendants a new trial. Herberman v. State, 287 Ga. App. 635, 653 S.E.2d 74 (2007).
Cited in DePalma v. State, 228 Ga. 272, 185 S.E.2d 53 (1971); Nicholson v. State, 125 Ga. App. 24, 186 S.E.2d 287 (1971); Herrin v. State, 230 Ga. 476, 197 S.E.2d 734 (1973); Walker v. Caldwell, 476 F.2d 213 (5th Cir. 1973); Walker v. State, 130 Ga. App. 860, 205 S.E.2d 49 (1974); Delvers v. State, 139 Ga. App. 119, 227 S.E.2d 844 (1976); Fennell v. State, 159 Ga. App. 194, 283 S.E.2d 72 (1981); Upton v. Johnson, 282 Ga. 600, 652 S.E.2d 516 (2007); Cox v. State, 300 Ga. App. 109, 684 S.E.2d 147 (2009); Lucas v. State, 328 Ga. App. 741, 760 S.E.2d 257 (2014).
RESEARCH REFERENCES
Am. Jur. 2d.
- 13 Am. Jur. 2d, Burglary, § 67 et seq.
C.J.S.- 12A C.J.S., Burglary, § 56 et seq.
ALR.
- Admissibility, in prosecution for burglary, of evidence that defendant, after alleged burglary, was in possession of burglarious tools and implements, 143 A.L.R. 1199.
Validity, construction, and application of statutes relating to burglars' tools, 33 A.L.R.3d 798.