State v. Clapp.
| Decision Date | 05 March 1946 |
| Parties | STATE v. CLAPP. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Hillsborough County; Wheeler, Judge.
Frank Dwight Clapp and another were convicted of stealing lumber, and the case was transferred on named defendant's exceptions to denial of certain motions.
New trial for named defendant.
Indictment charging that the respondent and one Parmenter ‘on or about December 21, 1944, with force and arms, feloniously did steal, take and carry away twenty thousand board feet of lumber of the value of $33.50 per thousand feet all of the value of $670.00. * * *’ Both respondents were tried together, by jury, resulting in verdicts of guilty against both.
The case is transferred by Wheeler, J., on respondent Clapp's exceptions to the denial of his motion to quash the indictment because of its indefiniteness with reference to what kind of lumber was taken; to denial of his motion for a directed verdict; to rulings relating to the admission and exclusion of evidence; to the Court's charge as given; to the refusal of the Court to charge as requested; to the denial of the respondent's motion to set the verdict aside because it could not be found by reasonable men that the evidence was conclusive.
The pertinent facts appear in the opinion.
J. Vincent Broderick, County Sol., of Manchester, and Frank R. Kenison, Atty. Gen., for the State.
Thomas J. Leonard, of Nashua, for respondent.
The motion to quash the indictment was properly denied. ‘All the state is required to do is to describe the offense fairly and fully and to inform the defendant with sufficient definiteness of the nature and cause of the accusation.’ State v. Fogg, 92 N.H. 308, 309, 30 A.2d 491, 492, and cases cited. The indictment in the present case meets the requirements when it charges the defendants with the theft of 20,000 board feet of lumber of the value of $33.50 per thousand feet. ‘Board feet of lumber’ is sufficiently definite; it cannot mean trees, logs, etc., suitable to saw and the products into which they are sawed, as contended by the defendant.
Lumber is defined as ‘timber sawed into merchantable form, especially boards.’ Funk & Wagnalls' New Standard Dictionary. ‘Timber, especially that sawed or split into boards, planks, etc., * * *.’ Webster's New International Dictionary. Moreover, Clapp had been employed by the company from which the lumber was alleged to have been stolen and knew the kind of boards which that company was sawing. A state witness, an investigating officer, was allowed to testify that Parmenter, Clapp's accomplice, stated to this officer that he (Parmenter) was with Clapp when the lumber was taken, that the lumber was delivered by them to Concord, Massachusetts, and that he (Parmenter) was paid $6 a load by Clapp. Immediately after this testimony defendant Clapp's counsel moved ‘That the Court instruct the jury that any statement made by Parmenter is no evidence against Clapp, and that the Court instruct the jury to have the jury disregard the confession made by Parmenter as no evidence against Clapp.’ The Court: ...
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