State v. Fox

• Decision Date: 30 April 1910
• Citation: 83 Conn. 286,76 A. 302
• Parties: STATE v. FOX et al.
• Court: Connecticut Supreme Court

76 A. 302

83 Conn. 286

STATE

v. FOX et al.

Supreme Court of Errors of Connecticut.

April Term, 1910.

Appeal from Superior Court, New Londod County; Ralph Wheeler, Judge.

Abraham Fox and others were convicted of larceny, and they appeal. Affirmed.

The information contained but one count, and charged the accused with the theft of 312 copper bond wires of the value of $258 of the goods and chattels of the New York, New Haven & Hartford Railroad Company. It was an undisputed fact upon the trial that that company was the lessee under a lease for the term of 100 years, beginning in 1809, of a steam railroad owned by the Norwich & Worcester Railroad Company, and that it was operating it as a steam railroad at the time of the alleged theft. It was also undisputed that in 1906 or early in 1907 the ends of the rails upon that portion of the track which extends from Jewett City to Plainfield had been connected by bond wires, consisting of small copper wires twisted into a cable; the ends of the cables being pressed into holes in the ends of the rails by hydraulic pressure so as to form a union of the metals. These connections were made by the Consolidated Railway Company, another corporation, for the purpose of adapting the track to be used for trolley or electric cars by that company in connection with its use by the lessee company as a steam road, and it was in such use at the time of the alleged theft. The materials used in making these connections were furnished by the New York, New Haven & Hartford Railroad Company upon requisition made by the railway company. Under the terms of its lease the New York, New Haven & Hartford Railroad Company was bound to keep and maintain the leased railway, its roadbed, bridges, grounds, etc., in as good order and repair as when received and to renew property worn out or destroyed by use, accident, design, or removal, and at the expiration of the lease to surrender the railroad and other property and the renewals and substitutions of the same in as good condition as when received.

The state claimed to have proved upon the trial that on the night of March 19, 1907, one Gertz, assisted by a man named Lewis, severed 312 of the bond wires from the rails, placing them in a heap upon the railroad's right of way and left them there, and that in the morning of March 20th returned with a team and carried off the wire and sold it to the defendants in Norwich, and that the latter purchased and concealed it with knowledge that it was stolen. The state offered evidence to prove that the wire so stolen and received weighed 702 pounds, and that its market value as junk was 20 cents per pound, or $140.40 in all, at the time it was stolen. No other evidence as to its value was offered.

Gertz was arrested in 1908 charged with the theft of the bond wire and pleaded guilty. The defendants were also arrested and presented before the city court of Norwich upon the charge of receiving the bond wire from Gertz knowing it to be stolen property. The stolen property was described as of the value of $100 in the complaint upon which they were presented. They were found not guilty by the city court and discharged; the court also finding that it was a case in which if they were guilty no greater punishment ought to be imposed than could lawfully be imposed by that court. Subsequently the defendants were arrested upon a bench warrant issued by the superior court upon the present information which was filed by the state's attorney. The defendants pleaded the acquittal in the city court in bar of the prosecution of this information. The state demurred to this plea, and the demurrer was sustained.

The defendants upon their plea of not guilty claimed and offered evidence to prove that they did not buy or receive the bond wires of Gertz or have any transaction with him or know of the theft, and that this prosecution was Inspired by Gertz and his wife because the defendants after the arrest of Gertz had refused, when applied to by his wife, to furnish bonds for his appearance for trial. After they had offered evidence to prove that the wife had requested them to become sureties for her husband and that she had threatened that if they did not she would inform against them, the state, against the objection of the defendants, was permitted to offer Gertz as a witness, who testified that prior to the claimed threat of his wife he had confessed to the theft and signed an affidavit implicating the defendants in the transaction. The defendants claimed that the bond wires after they were attached to the rails became a part of the real estate and belonged to the Norwich & Worcester Railroad Company, that as real estate they were not the subject of larceny, that they were improperly described in the information as the property of the New York, New Haven & Hartford Railroad Company, and that there was a fatal variance in these respects between the proof and the allegations of the information. Requests to charge bearing upon these claims were made to the court.

The jury returned a verdict of guilty against each of the accused, after which the court said to them: "Gentlemen, you are excused until next Wednesday morning at 10 o'clock." All the jury except one then left the courtroom and the courthouse. In a few minutes it was discovered that the jury had not been inquired of as to the value of the property. The court thereupon instructed the sheriff to send his deputies at once to reassemble the jury, and in about two hours the jurors were again present in the courtroom. Under instructions from the court, the clerk then asked the jury whether before reporting their verdict, they had agreed upon and found the value of the property. They replied that they had. They were then asked what they found the value to be, and replied "$140.40." The defendants objected to these inquiries being put and excepted to it. They afterwards made a motion in arrest of judgment upon the ground that this proceeding was invalid, and that there was no verdict in the case upon which a valid judgment could be rendered. The motion in arrest was overruled. The court's action in sustaining the demurrer to the plea in bar, in overruling the motion in arrest of judgment, in admitting the testimony of Gertz, and in neglecting to charge in accordance with the defendants' claims as to the character of the wire as real estate, as to its ownership, and as to the variance between the proof and the allegations of the information, are assigned as error by the defendants.

William H. Shields and Charles P. Thayer, for appellants.

Hadlai A. Hull, State's Atty., for the State.

THAYER, J. (after stating the facts as above). The defendants were formerly prosecuted in the city court of Norwich as receivers of the stolen goods now in question and were acquitted by that court. They pleaded that acquittal in bar of the present prosecution. Receivers of stolen goods are to be prosecuted and punished in the same manner as the person who committed the theft. Gen. St. § 1210. Under this statute they could be charged with the theft as principals or with being receivers of the stolen goods knowing them to be stolen. State v. Kaplan. 72 Conn. 635, 640, 45 Atl. 1918. A conviction or acquittal upon the latter charge would be a bar to a prosecution charging them with the theft. If the city court had jurisdiction to acquit the parties when presented before it, their plea in bar was good.

By the city charter that court has power "to hear and determine charges for crimes and misdemeanors committed within the city of Norwich the punishment for which as prescribed by law does not exceed a fine or penalty of two hundred dollars or six months' imprisonment in the common jail or such fine and imprisonment both." If the crime charged against the accused in any case is of so aggravated a nature as to require a greater punishment than that above specified, it is provided that the accused shall be bound over to the superior court in the manner provided in cases of binding over by justices of the peace. The punishment for larceny where the value of the goods stolen exceeds $50 and does not exceed $2,000 is imprisonment in jail or the state prison for not more than five years. The value of the stolen goods as charged in the complaint in the city court was $100, and as the punishment for the crime therein alleged might have been six months or less in jail, and the court found that no greater punishment than that ought to be inflicted, it is claimed that the case was within the final jurisdiction of that court, and that its judgment of acquittal is conclusive as to the guilt of the accused.

Under a statute existing prior to 1874, whenever any complaint for any criminal matter was brought before a justice of the peace in which the punishment provided by law might exceed a fine of $7 and imprisonment for 30 days (the maximum which a justice could impose) and might be less than such fine and imprisonment, such justice might proceed to hear and try the same, and in such cases, if in his opinion no greater punishment than a fine of $7 and imprisonment for 30 days ought to be imposed, fie could render judgment not exceeding such fine and imprisonment therein; but, if in his opinion the case was of such an aggravated nature that a greater punishment should be inflicted, he could bind the accused over to the next superior court. Gen. St. 1806, tit 1, c. 11. § 215. Under the statute, if the justice found that no greater punishment was deserved than he had jurisdiction to inflict, and he imposed such punshment, that ended the matter. State v. Davidson, 40 Conn. 281, 282. No original information for the same offense could be filed or prosecuted in the superior court against the accused, however aggravated the offense may have been, or however inadequate the punishment which was inflicted. Id. The city court of Norwich having the same powers as justices of the peace as respects hearing and binding...