State v. Enanno

• Decision Date: 22 July 1921
• Court: Connecticut Supreme Court
• Parties: STATE v. ENANNO et al.

114 A. 386

96 Conn. 420

STATE v. ENANNO et al.

Supreme Court of Errors of Connecticut.

July 22, 1921

Appeal from Superior Court, New Haven county; John E. Keeler, Judge.

Rosie Enanno and Katherine Enanno were convicted of theft from the person and of an attempt to commit theft from the person, and their motion to set aside the verdict was denied, and they requested findings and appeal from the judgment and also from the denial of their motion to set the verdict aside. Error judgment set aside, and new trial ordered.

Walter J. Walsh, of New Haven, for appellants.

Arnon A. Alling, State's Atty., and Walter M. Pickett, Asst State's Atty., both of New Haven, for the State.

GAGER J.

The defendants were jointly charged with the crimes of theft from the person and an attempt to commit the crime of theft from the person, and were convicted by a jury upon both counts. They then filed a motion to have the verdict set aside as against the evidence, which was denied, whereupon a request for a finding was made and an appeal for errors in the charge was taken. An appeal was also taken from the denial of the motion to set the verdict aside, but this was abandoned upon argument.

At least five of the reasons of appeal are based upon a claimed error of the court in its instruction to the jury in its definition of the crime of theft. Upon this point the court charged as follows:

" Theft or larceny is the wrongful or fraudulent taking by any person of the personal goods or property of another from any place, with intent to convert them to the taker's own use; that is, to make the goods or property his own without the consent of the owner. The intent must be to deprive the owner permanently of his property by appropriating it to the use of the taker."

The first count contained the language " feloniously did steal" ; the second count " did feloniously attempt to steal." The appellants complain that the court nowhere told the jury that the accused should not be convicted unless they took the money in question with a felonious intent, and that this failure constituted harmful error, and that this error affected both counts. The real grievance of the appellants as expressed in their argument seems to be that the court did not incorporate the very word " felonious" in its explanation of the crime charged. There was no error in omitting the use of this particular word. We doubt if its use would have given the jury any additional light upon the nature of the act charged. It is true that the word is incorporated in many definitions of " theft" ; for instance, Swift defines " theft" as:

" The wrongful taking and carrying away the personal goods of another from his possession with the felonious intent to convert them to the use of the offender without the consent of the owner." Swift's Digest, vol. 2, p 309.

On the other hand, Wharton, in his Criminal Law (11th Ed.) vol. 2, § 1095, after reviewing various definitions, says:

" Larceny may be defined to be the fraudulent taking and carrying away of a thing without claim of right with the intention of converting it to a use other than that of the owner without his consent."

The term " felonious" always requires further definition to be of any use to a jury. Wharton, Criminal Law, as above, § 1094. As long ago as 1796 Judge Swift in his system (volume 2, pp. 384, 385), quoted with approval by Chief Justice Andrews in State v. Setter, 57 Conn. 466, 18 A. 783, 14 Am.St.Rep. 121, said of the term " felonious," after referring to the use of the word in the English law:

" Nor does it [felony] with precision comprehend any class or description of crimes. A word of such uncertain meaning ought to be banished from a code of laws, for nothing produces greater confusion and perplexity than the use of terms to which no precise and clear idea can be affixed. *** The word ‘ feloniously’ is used in indictments for all capital crimes and for many not capital, as for theft; but as ‘ felonious' in an indictment can mean nothing more than ‘ criminal’ and does not designate the nature or the class of the crime, it may be deemed unnecessary and immaterial and ought to be exploded by our courts."

As we have seen, the term is still retained by many authors and judges as an essential part of the definition, but other definitions have been framed which omit the use of the word " felonious" and may be preferred as being clearer upon their face than those based on the use of the word " felonious." See Wharton's definition, supra.

Technically, however, the word " felonious" used in many definitions, some of which may be found collected in Bishop's New Criminal Law, vol. 2, § § 758 and 759, and the note, serves to indicate the nature of the criminality of the act; and a good definition must in some way, either by the use of the word " felonious" properly explained, or by the substitution of the explanation itself, or some equivalent phrase, point out this criminal characteristic. The learned trial judge apparently was intending to follow the language of Parke, B., as cited in 2 Bishop, supra, note 8 to section 758, but inadvertently omitted the words which state the necessary criminal characteristic in the definition used. The words " without excuse or color of right" do not occur, and we find nothing in the charge before us which supplies the omission of these words from the formal definition, while they are found in the definition as quoted from Parke, B., although in Parke's definition the word " felonious" is entirely omitted. " Felonious" in the definition of theft is held to mean the same as the words omitted from the charge before us, to wit, that there is no color of right or excuse for the act.

The appellants claim that under the definition as given, with the word " felonious" or its explanation, as stated above, omitted, the accused could have been convicted had the act in fact been simple conversion. The case required no very extended explanation of the idea contained in felonious, but we think, even without a request, the defendants were entitled to sufficient definiteness as to the nature of the criminality to remove all reasonable chances that the jury might fail to catch the distinction between conversion and theft. The failure to incorporate this...