State v. Harlan, 7471

• Decision Date: 30 September 1976
• Docket Number: No. 7471,7471
• Citation: 364 A.2d 1254,116 N.H. 598
• Parties: STATE of New Hampshire v. Walter J. HARLAN, Jr., et al.
• Court: New Hampshire Supreme Court

Page 1254

364 A.2d 1254

116 N.H. 598

STATE of New Hampshire v. Walter J. HARLAN, Jr., et al.

No. 7471.

Supreme Court of New Hampshire.

Sept. 30, 1976.

David H. Souter, Atty. Gen., Richard V. Wiebusch and W. John Funk, Asst. Attys. Gen., for the State.

Emile R. Bussiere, Manchester, by brief and orally for defendant Walter J. Harlan, Jr.

Stanley M. Brown, Manchester, and Vincent F. Dooley, for defendants Richard Finucan and George Lussier.

Wadleigh, Starr, Peters, Dunn & Kohls and Robert L. Chiesa, Manchester, for defendant James McDermott.

DUNCAN, Justice.

The defendants who are wholesale and used car dealers in Manchester, New Hampshire, were charged in multiple indictments with theft by deception. RSA 637:4. All defendants moved on various grounds to dismiss the indictments. With respect to defendants Harlan, McDermott, and Lussier, the motions were reserved and transferred without ruling in advance of trial (Loughlin, J.). Defendant Finucan's motion was 'granted conditioned upon consolidation and transfer without ruling' with the other cases. (Dunfey, J.)

Involved are twelve indictments naming defendant Harlan, ten naming defendant McDermott, three naming defendant Lussier and a single indictment naming defendant Finucan. The gravamen of each is that the defendant, on specified occasions, purchased a used automobile, reset the odometer so that it exhibited a lower number of miles than the car had actually traveled, and later sold the car to a third party. The indictments follow a pattern which is critical to a number of the defendants' contentions.

Taking the defendants in order, Harlan is alleged to have engaged in six transactions each of which is used to support two indictments. The first of these, in the language of RSA 637:4 II(a), charges the defendant with theft 'by purposely reinforcing a false impression which he (the defendant) did not believe to be true,' viz., that the odometer reading was correct at the time of sale. In support of this contention, the indictment recites that the defendant made a 'false written declaration' as to the correct odometer reading at the time of sale. A second indictment founded upon the same sale is cast in the language of RSA 637:4 II(c) and charges the defendant with theft by deception 'by purposely preventing (the purchaser) from acquiring information which was pertinent' to the sale. In support of this contention, the indictment recites that the defendant failed to forward a properly endorsed certificate of title to the purchaser as required by RSA 269-A:15 (Supp.1975). The pattern of these two indictments is repeated for each transaction, with the result that the six transactions in which Harlan is alleged to have engaged are used to Support twelve indictments.

As to the defendant McDermott, the indictments chart a similar course with five transactions used to support ten indictments. In the case of the defendant Lussier, three indictments were found and returned on the basis of three alleged transactions, each indictment charging the defendant with theft by purposely preventing the purchaser from acquiring information pertinent to the sale of the car (RSA 637:4 II(c)). However, unlike the above indictments, these were supported by a simple statement that the defendant failed to disclose to the purchaser that the odometer reading was incorrect at the time of sale.

The fourth defendant, Finucan, was named in a single indictment charging him with theft by purposely reinforcing a false impression which he did not believe to be (RSA 637:4 II(a)) and alleged that the defendant made a 'false written declaration' to the purchaser that the odometer reading at the time of sale was correct.

The defendants challenge these indictments on the grounds that they are duplicitous and render the defendants unable to prepare a proper defense; that the indictments purport to charge a felony under RSA 637:4 when, at most, the State has alleged a misdemeanor under RSA 260:91 and :92 (Supp.1975); that any view of the facts alleged in the indictments supports the conclusion that New Hampshire lacks territorial jurisdiction to try these defendants; and that, in light of the documentary evidence, introduced at the hearings below, the particular indictments alleging that the defendants signed false written statements will not and cannot be supported by any evidence at trial.

Initially, the defendants argue that, taken in sum, the indictments are so confusing and duplicitous as to render the defendants unable to prepare an adequate defense. They characterize the indictments as the 'product of a shotgun technique . . . hoping to find its target through dispersion rather than precision.' Part I, article 15 of the New Hampshire constitution provides that 'No subject shall be held to answer for any crime, or offense, until the same is full and plainly, substantially and formally, described to him . . ..' RSA 601:4 repeats the requirement. Our cases evince 'a rule of long standing in this State that a complaint must inform the defendant of the offense for which he is charged with sufficient specificity so that he knows what he must be prepared to meet and so that he is protected from being put in jeopardy once again for the same offense.' State v. Inselburg, 114 N.H. H. 824, 827, 330 A.2d 457, 459 (1974); see State v. Bergeron, 115 N.H. 70, 71-72, 333 A.2d 721, 723 (1975); 2 Wharton's Criminal Procedure §§ 287-89 (Torcia ed. 1975).

The crux of the defendants' argument is that each of the indictments may be interpreted to charge more than one offense and thus each defendant must perforce 'search through the pattern and choose, at his peril, a basis upon which to defend.' A fair reading of the text of each indictment reveals that this is not the case. See Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149, 1173-74 (1960). First, while there are numerous indictments covering similar transactions, the language of each follows the language of the statute under which it was returned. While this is not always sufficient of itself (State v. Inselburg, supra, 114 N.H. at 827, 330 A.2d at 459), in this case each indictment makes clear reference to the statute, section, and subsection which forms the basis for the indictment. See State v. Panichas, 107 N.H. 359, 362, 222 A.2d 211, 213 (1966).

Taking an example, the first indictment against the defendant Harlan recites in part: 'that Walter J. Harlan . . . did purposely and with a purpose to deprive it thereof exercise control in said Manchester over one thousand three hundred twenty five dollars ($1,325.00), the property of Antone C. Reis . . . by purposely reinforcing a false impression which he did not believe to be true, in that he did on August 3, 1974, acquire a 1970 Chevrolet automobile . . . which automobile had at that time an odometer reading of approximately 85,040 miles, did thereafter, on August 9, 1974, sell the said Chevrolet automobile with an odometer reading of approximately 35,000 miles . . . to Antone C. Reis, d/b/a Reis Auto Repair, for one thousand three hundred twenty five dollars ($1,325.00) and did thereafter make a false written declaration that the correct odometer reading for the said Chevrolet automobile was approximately proximately 35,000 miles and that the previous owner was Robert Frost, Middlebury, Vermont, which declaration was received by Antone C. Reis . . ..' It is plain that the indictment charges every element of the statutory offense of theft by deception (RSA 637:4 I) as defined in RSA 637:4 II(c). Each indictment charging a crime under RSA 637.4 II(c) is similarly drafted. Furthermore, each indictment charging a crime under RSA 637:4 II(a) tracks the language of the statute and clearly alleges every element of the offense. Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); see Fed.R.Crim.P. 7(c)(1); Scott, Fairness in Accusation of Crime, 41 Minn.L.Rev. 509 (1957).

The defendants point to the fact that the conduct alleged in the indictments may well constitute violations of RSA 260:91, :92 (Supp.1975) (tampering with an odometer) and RSA 269-A:15 (Supp.1975) (willful failure to forward a certificate of title). While this may be true, it is plain that the present indictments allege theft by deception, nothing more and nothing less. Accordingly, verdicts on the indictments will be res judicata as to any future attempt by this State to try the defendants for theft or any lesser included offense. ALI, Model Penal Code § 1.08 (1962); see State v. Harlan, 103 N.H. 31, 164 A.2d 562 (1960); State v. Collins, 115 N.H. 499, 345 A.2d 162 (1975). The critical allegation in each indictment is that the defendant converted the property of another to his own use by means of a deception. The fact that this may have been accomplished in part by acts which of themselves constitute separate offenses does not change the basic nature of the charge. In short, the indictments are not 'bad for uncertainty.' State v. Messenger, 58 N.H. 348 (1978).

With respect to the defendants Harlan and McDermott each transaction is made the subject of two indictments. Both indictments charge theft by deception under RSA 637:4 I. Under that statute there is only one crime in each case, albeit it may be accomplished by any of the means enumerated in RSA 637:4 II. RSA 637:1 provides that '(a)n accusation of theft may be supported by evidence that it was committed in any manner that would be theft under this chapter, notwithstanding the specification of a different manner in the indictment or information.' See Report of Commission to Recommend Codification of Criminal Laws, Comments at 60 (1969). The State is free to prove its case under any of the various theories enumerated in RSA 637:4 II, but as to each sale it is entitled to only one conviction of theft by deception. See Y. Kamisar, W. LaFave and J. Israel, Modern Criminal Procedure 1199 (...