State v. Grant, 53-76

• Decision Date: 05 April 1977
• Docket Number: No. 53-76,53-76
• Citation: 135 Vt. 222,373 A.2d 847
• Parties: , 85 A.L.R.3d 913 STATE of Vermont v. Edward R. GRANT, Jr.
• Court: Vermont Supreme Court

Page 847

373 A.2d 847

135 Vt. 222, 85 A.L.R.3d 913

STATE of Vermont v. Edward R. GRANT, Jr.

No. 53-76.

Supreme Court of Vermont.

April 5, 1977.

Richard G. English, Addison County State's Atty., Middlebury, for plaintiff.

James L. Morse, Defender Gen., and Robert M. Paolini, Deputy Defender Gen., Montpelier, for defendant.

Before BARNEY, C. J., LARROW, BILLINGS, and HILL, JJ., and SHANGRAW, C. J. (Ret.), specially assigned.

HILL, Justice.

This appeal arises from a verdict returned by a jury in the District Court of Vermont, Unit No. 2, Addison Circuit, finding the defendant-appellant Edward R. Grant guilty of the crime of petit larceny, a violation of 13 V.S.A. § 2502.

The record discloses that on the evening of August 31, 1975, the appellant entered the Middlebury Discount and Redemption Center. Once on the premises the appellant proceeded to the display rack where the store's supply of cigarettes was located. Mrs. Nancy Fitzsimmons, the co-owner of the store, saw the appellant remove two cartons of cigarettes from the shelf and place them under his shirt and pants. Appellant then walked to the front of the store directly across from the check-out counter. Mrs. Fitzsimmons immediately informed her husband of the taking. Mr. Fitzsimmons confronted the appellant and asked him three times whether he had taken any cigarettes. Each time the appellant denied haven taking the cigarettes. Mr. Fitzsimmons then lifted the appellant's shirt and removed the cartons of cigarettes from his person. At no time did the appellant open the cigarette cartons, nor did he ever attempt to leave the store while the cigarettes were in his possession.

After these events, appellant was arrested and charged with petit larceny. Trial was held in Addison County Courthouse. Because of a critical shortage of courtroom facilities, proceedings were held in very cramped and crowded quarters within the building. The physical arrangement was such that all involved in the trial process were in close proximity with one another, thereby making confidential communication difficult. At the close of the State's case, it was brought to the court's attention by defense counsel that the defendant had been stopped by his probation officer in the presence of the jury and questioned as to whether he was seeing his psychiatrist. Arguing that the exchange was prejudicial to the defendant, counsel moved for a dismissal. The court denied the motion, choosing instead to caution the jury to discount any conversation they may have overheard.

After both parties had rested, the defense counsel moved for a directed verdict, or, in the alternative, for a new trial on the ground that defendant had been denied due process of law as a result of the inadequate courtroom facilities. The court, equally inconvenienced by the crowded conditions, 'reluctantly' denied the motion. Following the verdict of guilty, defense counsel renewed the prior motion based on the inadequate courtroom. The motion was again denied. Defendant now appeals the judgment entered against him.

Appellant has assigned for our consideration two points of error: (1) whether the offense of petit larceny was sufficiently made out in view of the fact that appellant made no effort to carry the goods away; and (2) whether the nature of the courtroom facilities denied appellant his right, under the Sixth Amendment of the United States Constitution and Chapter I Article X of the Vermont Constitution, to a fair trial by an impartial jury and the right to counsel. We are of the opinion, supported as it is by the record, that the verdict rendered below was a proper one.

I.

Appellant argues that the elements of common law larceny, as incorporated in 13 V.S.A. § 2501 and § 2502, were not properly established in the present case since the record reveals that he never attempted to carry the cigarettes away from the store premises. As a result, appellant contends that an essential element of the crime of larceny, an asportation or carrying away, was absent and that the offense was therefore incomplete.

It can hardly be gainsaid that before the crime of larceny can be made out, it must be shown that there was a taking in fact. Larceny, as it has developed in the common law, is best defined as the taking and removal, by trespass, of personal property, which the trespasser knows to belong to another, with the felonious intent to deprive him of his ownership therein. State v. Levy, 113 Vt. 459, 461, 35 A.2d 853 (1944); State v. Reed, 127 Vt. 532, 538, 253 A.2d 227 (1969). In order to establish a taking, the State was not required to prove that appellant actually transported the cigarettes from the store premises. In the case of Groomes v. United States, 155 A.2d 73, 75 (D.C.Mun.App.1959), the court, under circumstances very much like those here, ruled:

It is well settled that the elements of a taking and asportation are satisfied where the evidence shows that the property was taken from the owner and was concealed or put in a convenient place for removal. The fact that the possession was brief or that the person was detected before the goods could be removed from the owner's premises is immaterial.

In the instant case, the appellant purposively removed the cigarettes from the shelf, secreted them under his clothing, and walked to the front of the...