State v. Gabriel

Decision Date13 March 1984
Citation473 A.2d 300,192 Conn. 405
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Lee GABRIEL.

Andrew B. Bowman, Westport, for appellant (defendant).

Edward J. Caldwell, Asst. State's Atty., with whom, on brief, was Donald A. Browne, State's Atty., for appellee (state).


ARTHUR H. HEALEY, Associate Justice.

The defendant went to trial on a three-count information with each count charging him with the crime of larceny by receiving stolen property. After a trial to the jury, he was found not guilty on the first two counts 1 and guilty on the third count. That count charged him with larceny in the first degree by receiving stolen property in that at the town of Fairfield on March 16, 1981, he "did retain the legal property of one Julian Bell, valued in excess of Two Thousand Dollars ... knowing that said property was probably stolen, in violation of Section 53a-119(8) and Section 53a-122(a)(2) ...." 2 This appeal on the third count followed.

The defendant claims on appeal: (1) that the statute under which he was convicted is "totally defective" because it purports to allow a conviction without proof of criminal intent; (2) that that statute is unconstitutional in that it permits the state to obtain a conviction without proving the essential element of criminal intent beyond a reasonable doubt; 3 (3) that the court erred in the charge; and (4) that there was insufficient evidence to support the verdict. We find no error.

Certain evidence that was before the jury in this case is properly referred to at this point. 4 For about one year prior to March, 1981, the defendant and his father owned and operated "Lee's News" (the newsstand) in Fairfield. In addition to selling such items as newspapers, cigarettes, milk, food products and the like, the defendant's father, pursuant to a scrap metal license issued by the Fairfield police, was permitted to buy items of gold, silver, jewelry and things of that nature. For the purpose of weighing precious metals, a set of scales was maintained at the newsstand. The defendant knew how to operate these scales and how to interpolate the weight of items on these scales into dollars for the purpose of estimating the value of such items. The price of gold fluctuates, and daily calls to a wholesale house would inform the defendant or his father of the current price of gold. If a stone, such as a diamond or black onyx, was attached to the gold or silver to be weighed, that stone would have to be extracted or removed from its metal surroundings prior to weighing the metal.

On March 16, 1981, at about 6:30 p.m., Paul Pyrch, Paul Melcher and John Yakubik all met at the newsstand, remained there about half an hour and then left and burglarized the home of Julian and Susan Bell in Fairfield. These three young men knew the defendant. All three returned to the newsstand sometime between 7:30 and 8 p.m. Before reentering the newsstand, they examined the property which they had taken from the Bell residence in the newsstand parking lot, "separated what was worth something and what wasn't" and then went into the newsstand to weigh the more valuable items. When they entered, the defendant was busy working and they took the scales and went into the back room. According to Pyrch, before they left to commit the Bell burglary, the defendant had been told that they were going out to burglarize a house. When they returned, upon the defendant's inquiry, they told him the general area of the Bell residence and also showed him what they had taken. Yakubik testified that the defendant "probably knew they [the Bell items] were stolen or hot" when they removed the items from their pockets once inside.

The defendant admitted that he came into the back room where the other three young men were, that he "looked through it ... to make sure it was all gold" and that he was a "little bit suspicious." After looking it over and touching it, the defendant said: "Looks nice. You guys did well." He also said that it was the "amount" of the jewelry which they asked him to weigh, and which he admitted weighing, that made him suspicious. The defendant did the weighing, putting the final measure on it, and then, using a calculator, gave an estimate of value. The estimates of the time they were in the back room of the newsstand doing this ran as high as fifteen to twenty minutes. The defendant himself said that it took him five minutes to make the calculations.

The defendant first claims that the statute, i.e., § 53a-119(8) is "totally defective" because it purports to allow conviction without proof of criminal intent. We cannot accept this claim. His argument here focuses on that language of that statute which provides: "A person is guilty of larceny by receiving stolen property if he receives, retains, or disposes of stolen property knowing that it has probably been stolen or believing that it has probably been stolen, unless the property is received, retained or disposed of with purpose to restore it to the owner...." He maintains that criminal intent must be proved beyond a reasonable doubt to establish guilt and that doing away with criminal intent in a felony statute should neither be lightly inferred nor allowed. He further claims that the legislature, in enacting the statute, has so lowered the standard of proof that it has effectively eliminated any requirement of mens area as well as no longer requiring that guilty knowledge be proven beyond a reasonable doubt. Thus, he argues that this "traditional larceny offense" statute is constitutionally vulnerable under Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). Morissette does not aid the defendant.

In Morissette, the defendant openly took certain government property which consisted of bomb casings lying in an open area on a former Air Force practice bombing range which he had assumed were abandoned. He candidly admitted taking them and was tried and convicted for "knowingly" converting government property. The trial court rejected his claim that he thought the property was abandoned and took from the jury the question of mens rea instructing: " 'The question on intent is whether or not he intended to take the property.' " Morissette v. United States, supra, 249, 72 S.Ct. 242. The Supreme Court reversed the conviction and held that the crime required proof of criminal intent. 5 Morissette v. United States, supra, 263, 72 S.Ct. 249. In the opinion, Justice Jackson reviewed the history of common law larceny-type crimes 6 and contrasted them with "statutory" offenses that did not require a guilty mind. In passing on the specific statute before the court, he said: "[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them." Morissette v. United States, supra, 263, 72 S.Ct. 249. The Supreme Court concluded that there was no indication that Congress had eliminated intent from the crime with which Morissette had been charged. Morissette v. United States, supra, 273, 72 S.Ct. 255. Significantly, therefore, the Supreme Court in Morissette was not required to decide, and did not decide, the issue of whether congressional elimination of the requirement of intent in traditional crimes would pass constitutional muster. Moreover, a fair reading of the case evinces no holding that, in making an act punishable regardless of intent, Congress would explicitly have to declare that no intent would be required as an element of the proscribed act. Indeed, from the point of view of its holding, Morissette is a case of federal statutory construction and it does not persuade us that General Statutes § 53a-119(8) is "totally defective" as claimed.

Our examination of Morissette does not, however, fully dispose of the defendant's claim. The defendant also claims the statute is defective as it purports to do away with guilty knowledge. We do not agree. We recognize the proposition that "[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence." Dennis v. United States, 341 U.S. 494, 500, 71 S.Ct. 857, 862, 95 L.Ed. 1137 (1951); see United States v. Freed, 401 U.S. 601, 613, 91 S.Ct. 1112, 1120, 28 L.Ed.2d 356, reh. denied, 403 U.S. 912, 91 S.Ct. 2201, 29 L.Ed.2d 690 (1971). We have recently pointed out that none of the elements of the crime proscribed by General Statutes § 53a-119(8) includes a specific intent. State v. Perez, 181 Conn. 299, 435 A.2d 334 (1980). " '[T]he legislature may, if it so chooses, ignore the commonlaw concept that criminal acts requiring the coupling of the evil-meaning mind with the evil-doing hand and may define crimes which depend on no mental element, but consist only of forbidden acts or omissions.' State v. Husser, 161 Conn. 513, 515, 290 A.2d 336 (1971). 'Whether or not a statutory crime requires "mens rea" or "scienter" as an element of the offense is largely a question of legislative intent to be "determined from the general scope of the act and from the nature of the evils to be avoided." ' Ibid.; State v. Gaetano, 96 Conn. 306, 316, 114 A. 82 (1921)." State v. Kreminski, 178 Conn. 145, 149, 422 A.2d 294 (1979). "If the legislature may define crimes which depend on no mental element, then it certainly may require an element of knowledge but no specific intent." State v. Perez, supra, 181 Conn. 316, 435 A.2d 334.

Our rule has been that an error of judgment in failing to realize the stolen character...

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