State v. Donnelly

• Decision Date: 01 November 1938
• Citation: 2 A.2d 214,124 Conn. 661
• Court: Connecticut Supreme Court
• Parties: STATE v. DONNELLY.

2 A.2d 214

124 Conn. 661

STATE v. DONNELLY.

Supreme Court of Errors of Connecticut.

November 1, 1938

Appeal from Superior Court, New Haven County; Frank P. McEvoy Judge.

Edward J. Donnelly was convicted of the theft of an automobile. Verdict and judgment of guilty, and defendant appeals.

Affirmed.

In prosecution for theft, permitting state to amend information by changing name of town in which offense was alleged to have been committed, and to offer further evidence after it had rested case in first instance, and defendant had moved for discharge, was not error as subjecting defendant to double jeopardy.

John Henry Sheehan and George W. Chisaski, both of New Haven, for appellant.

Spencer S. Hoyt, Abraham S. Ullman, and Samuel E. Hoyt, State's Atty., all of New Haven, for the State.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

MALTBIE, Chief Justice.

The defendant was informed against for the theft of a motor vehicle. No direct evidence was offered that he did in fact steal it, but the evidence dealt entirely with his possession of it as stolen property. In opposing the defendant's appeal from the denial of his motion to set the verdict aside the State argues that he was guilty of the crime of receiving stolen property. Under the charge of theft the defendant could be found guilty if he violated the statute penalizing one who receives and conceals stolen property. State v Ward, 49 Conn. 429, 439; State v. Kaplan, 72 Conn. 635, 640, 45 A. 1018; State v. Fox, 83 Conn 286, 291, 76 A. 302,19 Ann.Cas. 682. But the charge of the court clearly indicates that the defendant was tried as one who was guilty of the theft itself and nothing in the record contradicts this. We must then deal with the case upon that basis.

The car was stolen on the evening of January 29th, 1938. The jury might reasonably have found the following facts: The accused with another man, on January 31st, 1938, took an automobile to a garage owned by the former's grandmother and left it there most of the afternoon behind closed doors, where it was later found by an officer; after leaving the car the defendant and his companion went away from the garage for a short time, returned, stayed a few minutes in the garage, left again, and were arrested when they came back late in the afternoon; tracks in the newly fallen snow showed that only one automobile had been in the garage that afternoon; the officer removed the car to another garage and the owner there reclaimed it; a heater, radio, dual horns and a spare tire which had been among its accessories were missing. The defendant did not testify in his defense and his failure in any way to explain his possession of the car under these circumstances was a fact which the jury could properly consider. State v. Ford, 109 Conn. 490, 497, 146 A. 828. The jury could reasonably have concluded that the defendant, at least jointly with his companion, had the car in his possession and could have reasonably inferred from the facts we have stated and other circumstances in evidence, particularly the defendant's failure to offer any explanation of his possession of the car, that he knew it to have been stolen.

The recent possession...