This section contains the nature of the case and procedural background.

About 30 minutes past midnight, D crossed an alley carrying a 14-foot wooden ladder which he placed horizontally by the fence in the rear of a department store. D stood erect, looked upward and walked along the edge of the building. Having reconnoitered the premises back to the point from which Police Officer Wooten had witnessed D's movements D then proceeded easterly for 120 feet when commanded to halt. D stated that he was considering whether he could use the ladder at his home and that he might steal it. D wore brown cotton gloves. The officer placed D under arrest and left him at the police station. The officer returned to the scene and found a burlap sack, which contained various tools and burglars' equipment, including an 8-pound sledgehammer, bits, braces, flashlights, gloves and 30 feet of quarter-inch white rope ladder of about 15 steps. D had in his pockets two flashlights, wire cutters and a coil of small brown copper wire. D said that he was fixing to commit a burglary but had not yet selected a building. D said he was searching for the most likely looking spot. D was convicted of burglary and appealed.

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