State v. Gage
| Decision Date | 13 August 1965 |
| Docket Number | No. 39424,39424 |
| Parties | STATE of Minnesota, Respondent, v. Richard Wilson GAGE, Appellant. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
Where an indictment charges larceny by stealing from a building printed sheets belonging to a printing company, which sheets were a daily listing of new and changed numbers of telephone company subscribers and were discarded during the printing process as spoilage or overrun, the essential element of criminal intent is lacking when the evidence establishes that defendant actually and reasonably believed that the sheets were abandoned.
Richard B. Ryan, St. Paul, for appellant.
Robert W. Mattson, Atty. Gen., William B. Randall, County Atty., Paul E. Lindholm, Asst. County Atty., St. Paul, for respondent.
Defendant, a branch manager of a magazine sales company, was convicted of larceny in the second degree upon an indictment accusing him of stealing from and out of the building of a printing company '(p)rinted daily addenda telephone sheets of some value,' property of the publishing company, printed for the telephone company and discarded during the printing process as part of the spoilage or 'overrun.' He was sentenced to pay a fine of $500 and he appeals from the judgment of conviction.
When defendant was arrested on August 29, 1963, he was 32 years old, unmarried, and the branch manager of Family Publication Service, a corporation owned by Life and Time, Incorporated, and engaged in selling national magazines. Previously, from June 1955 to May 1963, he had worked for various magazine subscription agencies and had been branch manager of the Ben Franklin Reading Club. The branch which he supervised in August 1963 covered a territory extending from central Wisconsin west to Idaho, and from Canada south to the middle of Iowa. It had 81 employees, about 33 of whom were engaged in sales, mainly by telephone solicitation. To carry on such sales, the branch paid the telephone company about $1,500 monthly for telephone services, which included the lease of a special street directory for Minneapolis and St. Paul published by the telephone company semiannually.
In August 1962, a year previous to his arrest, when he was branch manager of the Ben Franklin Reading Club, defendant learned from one of his employees that the telephone company has printed and distributed daily to its exchanges a list of new and changed numbers called the 'daily addenda' or 'green sheets.' These lits supplement the directory now published annually by the telephone company and are used to enable the 'information group' to advise callers of a subscriber's current telephone number. He attempted to obtain the daily addenda from the telephone company but was told it did not sell or furnish such service. When he inquired why, he was told by a secretary, 'Well, probably, just probably financially impractical.' The testimony from a telephone company official was that it was company policy not to furnish the service, even though many sought to buy it, because the annoyance to subscribers caused by telephone solicitation on moving days outweighed any profit from the sale of the service. Defendant was told by the telephone company, upon his inquiry, that Webb Publishing Company printed the daily addenda. He inquired of Webb by telephone and was told that the lists were not for sale by it but that he should talk to the telephone company. Later, another of his employees told him that she knew a girl who worked at Webb. He went to that girl and asked if there were any proof copies of the sheets that were thrown away. She said that she didn't know, but he should call Mr. Bergeson. Defendant did so and made an appointment to see him.
Bergeson had been a pressman at Webb for 16 years. At the time of the meeting in his West St. Paul home in October 1962, he operated the offset press on which the daily addenda were printed. Defendant misrepresented himself to Bergeson as an insurance salesman who was having difficulty in making contacts. He felt that the magazine solicitation business carried a disreputable connotation and the less said about it the better. The two men engaged in small talk for a bit; then, after Bergeson had described his job, defendant ventured to ask whether he could 'possibly maybe get some sheets for him, sheets that weren't any good.' Bergeson told him that he 'thought (he) could, but (he) said, although (he) didn't know what possible good they would be because the numbers themselves could be obtained from the operator or could be obtained right out of the regular telephone book.'
Bergeson nevertheless obtained some copies for defendant. These were satisfactory, and defendant paid Bergeson $100 for October and $75 a month thereafter for delivering the discarded copies. Bergeson first supplied the copies personally, but later, because he worked nights and defendant wanted them early in the morning, placed them in a rural mailbox at the curbside of his home, where defendant picked them up. Bergeson made no attempt to conceal his activities at the plant or at home. His neighbors, wife, and family knew of the arrangement, and his wife on occasion accepted payment from defendant. All of the sheets supplied came from a wastepaper or a trash receptacle located near the press. The sheets supplied were either deficient tests resulting when the machine was started, or overrun sheets. Bergeson never printed sheets expressly for defendant, and on the few occasions when there were no discards, no sheets were supplied. Bergeson was never told, as he was on some security printing jobs, that he had to account for the spoilage. He knew that the wastepaper was baled and picked up by the Waldorf Paper Products Company although defendant did not, and neither of them knew that Waldorf paid Webb $7 a ton for the wastepaper.
Defendant often took a circuitous route to Bergeson's house for the purpose of evading competitors, one of whom he discovered following him on one occasion, but otherwise he made no attempt to conceal his activities. Once the telephone investigator passed him on the sidewalk and saw the characteristically green addenda protruding from his pocket. Telephone repairmen were in defendant's calling room on the average of once a month, and the green sheets were kept in full view. Defendant stated that he once consulted a sheet with a repairman whom he had questioned concerning how telephone numbers are assigned.
Soon after defendant began using the sheets with the Ben Franklin Reading Club, the telephone company received its first complaint from subscribers. Raymond Buechner,...
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