State v. Reynolds , 95 Conn. 186 ( 1920 )

The application to correct the appeal is without merit. It is an attempt to reframe in certain particulars the statement by the trial judge of what the State claimed to have established by its evidence to the jury. While this in a sense is a "finding" subject to correction by us when the fair presentation of the appeal demands it (Sansona v. Laraia, 88 Conn. 136,90 A. 28), no occasion calls for such action here, and the application is dismissed.

The evidence warranted the jury in finding that by a series of deliveries, all within a consecutive period of three days, Beaumont put into the hands of the defendants sums of money aggregating $5,000, at their continued solicitation and upon the explicit condition that the money should be used to pay for certain liberty bonds which they falsely represented they had an interest in, and upon which a certain sum was still to be paid by them; that the bonds should then be immediately brought to him for a division, and that an amount in bonds equal to the $5,000 so delivered should be turned over to him in place of the money, and that unless the bonds were so immediately redeemed and brought to him, the $5,000 so delivered should be returned by the defendants to Beaumont. It warranted the further finding that after the last of these sums had been delivered, the defendants, failing to secure the delivery of still more money by the same fraudulent method, admitted that they had no bonds to deliver, and denied that they had Beaumont's money.

With the plainly warranted inference of the essential felonious intent to permanently deprive Beaumont of his property, these facts indisputably disclose all the elements of larceny. "Obtaining possession by fraud in such a case is regarded as having the same effect as obtaining possession by trespass." Commonwealth v. Flynn, 167 Mass. 460, 464, 45 N.E. 924; 2 Bishop's Criminal Law (8th Ed.) § 166. They justify the further finding that the several deliveries were part of a single definite scheme or transaction, all accompanied by a felonious intent to permanently deprive Beaumont of his money and to appropriate it to the use of the defendants, whose acts ripened into and culminated in a single theft of all the money so secured, when their appropriation of the final instalment of $2,000 and their avowed refusal to fulfil the conditions upon which the money was delivered, completed their conversion of the entire sum. The verdict was warranted by the evidence and the trial court properly refused to set it aside.

There was no error in the admission of the question asked of the witness DiMock. The nature of the charge against her and the scope of the evidence relied upon to maintain it, easily brought the question within the wide latitude of fair cross-examination, though naturally enough the topic had not been touched upon in the direct examination of the witness. Several questions and answers immediately following the one objected to accompany the court's statement of the ruling in the finding. We discover in them no warrant for the defendant's complaint that the subject was calculated to prejudice her case before the jury, and as the initial and plainly admissible question was the only one objected to, it is perhaps fair to infer that the earlier impressions of her counsel were of the same character.

The remaining four assignments of error deal with the court's instructions to the jury. One of them selects for criticism a portion of the charge covering more than two printed pages of the record. We find it unnecessary to reproduce it since a careful reading of the part objected to as argumentative shows that the court was not in the main making comments of its own, but was stating the claims of the State upon the evidence. There are one or two places which, if isolated, might lend some color to the defendants' claim, but they are manifestly due to the inadvertent omission of a word or two, and all doubt of their real character is removed by the context. Chany v. Hotchkiss,79 Conn. 104, 63 A. 947.

The further complaint, that undue prominence is given to the State's claims at the expense of those of the defendants, is unfounded. The court's method on this branch of the case was in manifest fulfilment of a plain duty. State v. Marx, 78 Conn. 18, 28,60 A. 690.

Error is also assigned of this language of the charge: "Now, another proposition is, if the property was given outright, of course, it would not be larceny. But if Beaumont were induced, if he authorized the accused or either of them to take the possession of this money for a certain definite specific purpose, conditioned for that purpose, and that purpose were not performed or accomplished, then it would be larceny." Standing by itself, the second sentence of this portion of the charge is an incomplete, and hence incorrect, statement of the law. Obviously the court did not mean that the mere failure to accomplish the purpose for which the money was conditionally delivered, would of itself make a theft of the transaction, though the instruction is open to that construction. It must be considered, however, with intelligent reference to earlier portions of the charge, where the court has carefully and with adequate fulness defined theft and given sufficient emphasis to its essential elements. Thus, after giving the jury the accepted definition of larceny, the court adds: "The very essence of the crime is the felonious intent, and this wrongful intent and fraudulent intent must be present at the time of the taking, and as an intent fraudulent, without color of right or excuse, to obtain the property of another." Again, the jury were told that if the wrongful possession of one's property, although obtained openly "but by exercising some deception, artifice or fraud," is followed by a conversion and appropriation by the taker to his own use, "the jury would be justified in finding that the taking was with a felonious intent." And finally, a little before the statement to which exception is taken, the court, in dealing with money as the proper subject of theft, says that "there must be the felonious intent at the time of taking to deprive the owner permanently of his property, and it must be further without any claim of right." In addition to this, the court's last caution to the jury before the instruction under discussion was, that if "Beaumont gave the money to the accused or either of them, no matter what means were used to obtain his consent in so giving," neither was guilty of larceny. We think these repeated references to the essential elements of the offense must have given the jury a correct and fixed appreciation of their invariable importance, and that they could not reasonably have construed the instruction under criticism as in any way qualifying the rule that had been formulated for them, or relieving it of any of its inflexible requirements.

The remaining assignments are without force and call for no independent consideration.

There is no error.

In this opinion the other judges concurred.