Appeals, Nos. 281 and 282, Jan. T., 1957, from judgment of Superior Court of Pennsylvania, Oct. T., 1956, Nos. 208, 209, affirming judgment of Court of Quarter Sessions of Philadelphia County, Nov. T., 1954, Nos. 119 and 120, in case of Commonwealth v. Eugene Clinton and Thomas Houser. Judgment reversed.
Claude Olwen Lanciano, for appellant.
Juanita Kidd Stout, Assistant District Attorney, with her Thomas M. Reed, Assistant District Attorney, James N. Lafferty, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE MUSMANNO
On the night of October 24, 1954, at about 11:45 o'clock, Eugene Clinton and Thomas Houser were arrested by Philadelphia police and later charged with the crimes of Possessing Burglars' Tools (Act of June 24, 1939, P.L. 872, § 904, 18 P.S. § 4904) and Prowling (Act of June 24, 1939, P.L. 872, § 418, added May 27, 1949, P.L. 1900, § 1, 18 P.S. § 4418.) They were tried before Judge KUN of the Court of Quarter Sessions, Philadelphia County, without a jury and convicted. Clinton appealed to the Superior Court which affirmed his conviction and then petitioned this Court for an allocatur which was allowed. Houser did not appeal.
On the night of his arrest, Clinton was seen, at the corner of 23rd and Manning Streets, to get into an Oldsmobile automobile in which the police found 4 electric drills, a screwdriver, a hatchet, electric razor, and a crowbar. Houser was arrested on the street. He had in his possession two clocks, three electric bits and a chisel. Being questioned at detective headquarters about the tools in his car, Eugene Clinton explained that he worked for his brother, Edward Clinton,
who was in the business of installing television and high power aerials, and that the tools in question were used in that work.
At the trial, the defendant's brother, Edward Clinton, corroborated what Eugene had said, and identified all of the tools, which had been found in Eugene's car, as belonging to him. Referring to the items he testified: "This is a common cold chisel for cutting work. We do some metal work in supports and stuff like that. These are common, ordinary high-speed bits that we use ... These are crowbars that we use in ceiling work when they are remodeling. We work with the electricians and contractors." When the Trial Judge asked him to demonstrate how the crowbar was used he replied: "Supposing you had 2 by 4s coming this way and we wanted to put something behind them. I would go at it this way, and you can also use it this way with the other end. You see, you have leverage here, where you don't have it here."
The Court questioned further and Edward replied: "Q. That is good enough. Now, how about the little hatchet. A. The little hatchet is a common thing. I, myself, use a smaller hatchet because I have a regular belt that I use to hold all my tools for certain things. There are times when we might want to nick out a little bit. Q. How about the drills? A. We had about 14 inches of concrete to go through over here and we went through that - Q. You mean at Callahan's? A. Yes. What we had to do was put a television in the wall and everything had to be concealed, so we took it from the basement up to the bar to keep the cables concealed. It involved work with the walls."
The two Clinton brothers had worked on a job that day, and had ceased operations about 6 p.m. The tools were left in the car, Edward explained, because: "With heavy ...