Possession of burglary tools consists of having in the person's possession a device or instrumentality designed or commonly used for the commission of burglary and under circumstances evincing an intent to use the same in the commission of burglary.

Whoever commits possession of burglary tools is guilty of a fourth degree felony.

History: 1953 Comp., § 40A-16-5, enacted by Laws 1963, ch. 303, § 16-5.

This section is not void for vagueness, since it gives fair warning that possession of the type of instrument described in the statute, and under the circumstances described in the statute, is a crime. State v. Najera, 1976-NMCA-088, 89 N.M. 522, 554 P.2d 983.

Vagueness. — Since criminal intent is construed to be necessary element of crime of possession of burglary tools, act is not void for indefiniteness and uncertainty under constitution. State v. Lawson, 1955-NMSC-069, 59 N.M. 482, 286 P.2d 1076.

No unlawful delegation of power. — Since criminal intent is construed to be necessary element of crime of possession of burglary tools, act does not constitute an unlawful delegation of legislative power to the judiciary to prescribe in each case a different offense. State v. Lawson, 1955-NMSC-069, 59 N.M. 482, 286 P.2d 1076.

No merger with attempted burglary. — The crime of attempt to commit felony of burglary did not merge with the crime of possession of burglary tools, and hence, defendant's sentence for each of these crimes did not constitute double punishment. State v. Everitt, 1969-NMCA-010, 80 N.M. 41, 450 P.2d 927.

Possession of burglary tools. — Possession of burglary tools is not necessarily involved in burglary. State v. Everitt, 1969-NMCA-010, 80 N.M. 41, 450 P.2d 927.

What conduct prohibited. — This section gives notice that one is exposed to criminal sanctions if one: (1) possesses an instrumentality or device, (2) the instrumentality or device is designed or commonly used to commit burglary, and (3) the instrumentality or device is possessed under circumstances evincing an intent to use the instrumentality or device in committing burglary. State v. Najera, 1976-NMCA-088, 89 N.M. 522, 554 P.2d 983.

Whether items commonly used for burglary is jury question. — The issue of whether items are commonly used for burglary is a factual one to be decided by the jury upon any competent evidence tending to show the nature and purpose of the tools. State v. Jennings, 1984-NMCA-051, 102 N.M. 89, 691 P.2d 882, cert. quashed, 102 N.M. 88, 691 P.2d 881.

Criminal intent requisite. — Criminal intent is an element of crime of possession of burglary tools, and the phrase "under circumstances evincing an intent" is merely a directive that criminal intent may be shown by evidence of circumstances. State v. Lawson, 1955-NMSC-069, 59 N.M. 482, 286 P.2d 1076.

Nature of possession. — This section does not require possession of burglary tools on the person of the defendant. State v. Garcia, 1969-NMCA-039, 80 N.M. 247, 453 P.2d 767.

Indictment sufficient. — Indictment charging offense by reference to the section or subsection creating the offense was sufficient, and trial court properly treated allegation as to possession on defendant's person as surplusage. State v. Garcia, 1969-NMCA-039, 80 N.M. 247, 453 P.2d 767.

Evidence sufficient. — The evidence, which showed that defendant pried open an office door and committed a larceny, was sufficient to support a finding that defendant intended to use a pry device to make an unauthorized entry of a structure with the intent to commit a felony therein. State v. Barragan, 2001-NMCA-086, 131 N.M. 281, 34 P.3d 1157.

Evidence of possession. — Evidence that burglary tools were taken by police from possession of defendants, weapons being found in the truck occupied by them on night of the burglary, substantially supported finding that defendants were in possession of the tools. State v. Garcia, 1969-NMCA-039, 80 N.M. 247, 453 P.2d 767.

Law reviews. — For article, "The Confusing Law of Criminal Intent in New Mexico," see 5 N.M.L. Rev. 63 (1974).

For annual survey of New Mexico criminal law, see 16 N.M.L. Rev. 9 (1986).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 13 Am. Jur. 2d Burglary §§ 74 to 77.

Validity, construction and application of statute relating to burglars' tools, 33 A.L.R.3d 798.

12A C.J.S. Burglary §§ 43 to 48.