State v. Devine

CourtSupreme Court of Connecticut
Writing for the CourtBefore BALDWIN; BALDWIN
PartiesSTATE of Connecticut v. John S. DEVINE et al. Supreme Court of Errors of Connecticut
Decision Date19 July 1962

Page 612

183 A.2d 612
149 Conn. 640
STATE of Connecticut
v.
John S. DEVINE et al.
Supreme Court of Errors of Connecticut.
July 19, 1962.

[149 Conn. 642]

Page 613

Irwin D. Mittelman, Special Public Defender, for the appellant (defendant Devine).

John E. Larson, Special Public Defender, for the appellant (defendant Cooper).

Harry Hagel, Special State's Attorney, for the appellee (state).

Before [149 Conn. 640] BALDWIN, C. J., and KING, MURPHY, SHEA and ALCORN, JJ.

[149 Conn. 642] BALDWIN, Chief Justice.

The defendants, Thomas C. Cooper, John S. Devine and Robert F. Smith, were tried, jointly, to a jury on an information charging them with conspiracy. They were found guilty. Devine and Cooper appealed.

The defendants were without funds to employ counsel for themselves. Cooper was represented at the trial by the public defender, Richard C. Parmelee. Devine and Smith were represented by special public defenders appointed by the trial court. After the appeal had been filed Cooper and Devine, hereinafter called the defendants, attempted to perfect the appeal themselves. Thereafter, the court appointed the special public defender who had represented Devine at the trial to represent him on the appeal. Subsequently, Devine sought, without success, to have his counsel removed, and both he and Cooper moved for the appointment of other counsel. Cooper persisted in his attempt to perfect his own appeal, with consequent confusion and delay. When the cases were first assigned for argument in this court, he asked [149 Conn. 643] for a continuance and for the appointment of counsel. Devine offered no objection. The public defender appointed to succeed Richard C. Parmelee, who had resigned his office, was assigned to Cooper's defense and proceeded with his appeal. These facts are noted in order to explain most of the delay preceding the argument and consideration of this case in this court.

The information charged the defendants with the crime of conspiracy in violation

Page 614

of § 54-197 of the General Statutes in that they conspired between June 7, 1959, and July 17, 1959, to commit the crimes of breaking and entering and of larceny in violation of §§ 53-76 and 53-63 of the General Statutes, and that in furtherance of the conspiracy they stole from the premises of the Connecticut Light and Power Company in Essex copper wire of a value in the aggregate of more than $2000. 1 The trial [149 Conn. 644] court instructed the jury that the state had failed to prove a conspiracy to commit the crime of breaking and entering in violation of § 53-76 but had offered evidence which tended to prove conspiracy to commit larceny in violation of § 53-63. The case was submitted to the jury on the charge of conspiracy to commit larceny.

The evidence offered by the state can be stated in summary as follows: During the period from June 24 to July 17, 1959, the power company, by taking inventories, discovered that quantities of copper wire were missing from its premises in Essex, where the wire had been stored on a concrete platform. This platform was completely enclosed by a chain link fence but was otherwise open to the weather. Representatives of the company complained to the state police. On July 16, Francis J. McGrath, an employee of the company, and John F. O'Brien, a state police officer, inspected the premises. They discovered near the platform a vertical cut in the fence, large enough for a person to pass through it and to transport or drag through it coils of wire weighing 100 pounds. Outside the fence there were indications on the ground and in the surrounding vegetation that objects had been dragged to West Street, a highway which ran parallel to the fence. Near the platform, a small metal object, which was part of a shirt button, was found. During the night of July 16, William Griffin, a state police officer, was watching in a building immediately adjoining the platform. Shortly after 12:30 a.m. on July 17, a Chevrolet automobile with a 'U-Haul-It' trailer drove up on West Street and then drove off. Five to ten minutes later, Griffin heard a noise and saw a man running toward the platform where the wire was stored. The platform [149 Conn. 645] and surrounding area were sufficiently illuminated to enable Griffin to observe persons and objects on and about the platform. A few minutes later, two other men appeared within the fence and ran toward the platform. Griffin heard a loud crash from some falling object and a noise which sounded like wire being pulled from a reel. One man was working on the wire at one place on the platform and the others at another. While Griffin was apprehending Smith, who was the men working alone, one of the others climbed over the fence. After the arrest of Smith, the two other men could not be found on the premises.

Page 615

Smith was arrested at about 2 a. m., and his arrest was reported to headquarters at about 2:18 a. m. About 2:30 a. m., a toll collector, who had been alerted, saw a Chevrolet car with a 'U-Haul-It' trailer pass through the toll gate on the Connecticut turnpike at Branford, twenty-four miles away. The car had a Florida license. At the trial, the toll collector identified Cooper as the driver, but he did not identify the other man riding in the car. On June 29, 1959, Cooper had sold 2070 pounds of copper wire to A. S. Woodstein, Inc., in Elizabeth, New Jersey, and received a check for $476.10. On July 1, he had sold the Woodstein company 1680 pounds of copper wire and received a check for $386.40. On July 16, he had sold 2020 pounds of copper cable to the Woodstein company for $444.40. These three lots of wire were substantially the same in weight as the quantities found missing by separate inventories taken at that time by the Connecticut Light and Power Company. The last wire sold could be, and was, identified as wire stolen from the company between July 13 and July 16. Cooper had sold wire on previous occasions to the Woodstein [149 Conn. 646] company. An officer of that company identified Cooper as the man who sold wire to him on June 29, July 1 and July 16. He identified Devine as the man who was with Cooper. Cooper, Devine and Smith had registered in hotels in Norwalk and New London, Connecticut, during the period when the wire was taken. All three were identified as having been together on those occasions. There was a record of a telephone call from Cooper in New London to the Woodstein company in Elizabeth, New Jersey, on June 29. Cooper had rented a Chevrolet with the Florida license IE-16373 from the Avis-Rent-A-Car service in Providence, Rhode Island on July 7. On July 13, Cooper, Devine and Smith had been apprehended and detained in Rhode Island when Cooper was driving this Chevrolet and Devine was driving a panel truck, registered in Cooper's name, in which there was a quantity of copper wire. The truck was detained by the Rhode Island police. A 'U-Haul-It' trailer was rented by Cooper in New York on July 14. Cooper identified Devine as a driver in his employ. The part of a button found on July 16 near the platform on the premises of the Connecticut Light and Power Company came from a shirt, with Cooper's name on it, which was worn by Smith at the time of his arrest. Devine, after his arrest, confessed participation in the thefts. He also admitted having cut the hole in the fence and being with Cooper in the Chevrolet car at the toll station on the early morning of July 17. Cooper, Devine and Smith, before coming to Connecticut, had crossed the country from California. Devine admitted to engaging in thefts of copper wire during this cross-country trip. Cooper admitted only the sale of it. The wire stolen in Essex was valued at $2884.17.

Cooper's testimony can be summarized as follows:[149 Conn. 647] He stayed at the Hotel Mohican in New London while attending a convention of veterans of the submarine service. There was no agreement with Devine and Smith other than that he would employ them in a business which he intended to open in Rhode Island in July. He had done business with the Woodstein company during a period of several years, including June and July, 1959. The checks which were introduced in evidence by the state were received by him from the Woodstein company for copper metal, but they were for wire obtained in Pennsylvania and Virginia. He had never been on the premises of the Connecticut Light and Power Company in...

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30 practice notes
  • State v. Darwin
    • United States
    • Supreme Court of Connecticut
    • May 31, 1967
    ...the making of a confession, it was 'the product of an essentially free and unconstrained choice by the maker'. State v. Devine, 149 Conn. 640, 653, 183 A.2d 612, 618; State v. Traub, 150 Conn. 169, 175, 187 A.2d 230, remanded on other grounds, 374 U.S. 493, 83 S.Ct. 1899, 10 L.Ed.2d 1048. W......
  • State v. Stankowski
    • United States
    • Supreme Court of Connecticut
    • November 16, 1981
    ...is, in the first instance, one of fact for determination by the trial court in the exercise of its legal discretion. State v. Devine, 149 Conn. 640, 652, 183 A.2d [184 Conn. 132] 612 (1962). That discretion must, however, be exercised in accordance with constitutional standards of due proce......
  • State v. Falby
    • United States
    • Supreme Court of Connecticut
    • May 4, 1982
    ...v. Staples, 175 Conn. 398, 408, 399 A.2d 1269 (1978)." State v. Derrico, supra, 181 Conn. 162-63, 434 A.2d 356, see State v. Devine, 149 Conn. 640, 652, 183 A.2d 612 The transcript supports the trial court's factual determination. At the hearing on the motion to suppress, there was testimon......
  • State v. Acquin
    • United States
    • Supreme Court of Connecticut
    • July 27, 1982
    ...is simply no evidence that the circumstances were such as to " 'overbear ... [the accused's] will to resist ....' " State v. Devine, 149 Conn. 640, 653, 183 A.2d 612 (1962); Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 On the basis of the foregoing we concl......
  • Request a trial to view additional results
30 cases
  • State v. Darwin
    • United States
    • Supreme Court of Connecticut
    • May 31, 1967
    ...the making of a confession, it was 'the product of an essentially free and unconstrained choice by the maker'. State v. Devine, 149 Conn. 640, 653, 183 A.2d 612, 618; State v. Traub, 150 Conn. 169, 175, 187 A.2d 230, remanded on other grounds, 374 U.S. 493, 83 S.Ct. 1899, 10 L.Ed.2d 1048. W......
  • State v. Stankowski
    • United States
    • Supreme Court of Connecticut
    • November 16, 1981
    ...is, in the first instance, one of fact for determination by the trial court in the exercise of its legal discretion. State v. Devine, 149 Conn. 640, 652, 183 A.2d [184 Conn. 132] 612 (1962). That discretion must, however, be exercised in accordance with constitutional standards of due proce......
  • State v. Falby
    • United States
    • Supreme Court of Connecticut
    • May 4, 1982
    ...v. Staples, 175 Conn. 398, 408, 399 A.2d 1269 (1978)." State v. Derrico, supra, 181 Conn. 162-63, 434 A.2d 356, see State v. Devine, 149 Conn. 640, 652, 183 A.2d 612 The transcript supports the trial court's factual determination. At the hearing on the motion to suppress, there was testimon......
  • State v. Acquin
    • United States
    • Supreme Court of Connecticut
    • July 27, 1982
    ...is simply no evidence that the circumstances were such as to " 'overbear ... [the accused's] will to resist ....' " State v. Devine, 149 Conn. 640, 653, 183 A.2d 612 (1962); Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 On the basis of the foregoing we concl......
  • Request a trial to view additional results

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