State v. Huot
| Decision Date | 30 March 1976 |
| Citation | 365 A.2d 1144,170 Conn. 463 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Donald HUOT. |
Richard T. Meehan, Bridgeport, for appellant (defendant).
Thomas E. Minogue, Jr., Asst. States Atty., with whom, on the brief, were Richard F. Jacobson, Asst. States Atty., and Donald A. Browne, States Atty., for appellee (state).
Before HOUSE, C.J. and LOISELLE, BOGDANSKI, LONGO and % barber/, JJ.
The defendant was charged in a two-count information with breaking and entering a public school building with intent to commit a crime therein in violation of General Statutes § 53-76 (repealed 1971), and with larceny in violation of General Statutes § 53-63(a) (repealed 1971). A jury found the defendant not guilty of breaking and entering and not guilty of larceny, but guilty of receiving stolen property. From the judgment rendered on the verdict the defendant has appealed, assigning error in the court's charge and in its denial of his motions to set aside the verdict and for judgment notwithstanding the verdict.
The defendant first assigns error in the court's refusal to adopt the following written request to charge: State v. Donnelly, 124 Conn. 661, 663, 2 A.2d 214, 215.
We find no merit to this claim. The court instructed the jury that 'the possession of the property recently stolen, if it is unexplained and standing alone or without other facts pointing to a contrary conclusion, would justify you in drawing an inference that the possessor . . . stole the property.' The court went on to explain that the soundness of the inference would be dependent upon the weight which the jurors accorded to all of the evidence presented on the issue. 'Error cannot be predicated upon a failure to adopt the particular language of a request to charge where the matter is adequately or fairly covered in the charge.' Nally v. Charbonneau, Conn., 362 A.2d 494 (37 Conn.L.J., No. 1, pp. 16, 17); Hally v. Hospital of St. Raphael, 162 Conn. 352, 361, 294 A.2d 305. The charge fully covered the substance of the defendant's written request.
The defendant's principal claim is that the crime of receiving stolen property should not have been submitted to the jury because (1) that crime was not charged in the information, and (2) it was not a lesser included offense within the count of larceny.
General Statutes § 53-65 () read: 'any person who receives and conceals any stolen goods or articles, knowing them to be stolen, shall be prosecuted and punished as a principal, although the person who committed the theft is not convicted thereof.' Since the statute expressly authorized prosecution of a receiver as a principal in the theft, a person charged with the crime of larceny in violation of § 53-63 of the General Statutes could have been convicted on proof that he was a receiver under § 53-65. State v. Palkimas, 153 Conn. 555, 562, 219 A.2d 220. See State v. Weiner, 84 Conn. 411, 412, 418, 80 A. 198; State v. Fox, 83 Conn. 286, 291, 76 A. 302; State v. Kaplan, 72 Conn. 635, 639, 45 A. 1018. '(P)roof of guilt under the receiving statute is proof of guilt as a principal thief of the goods received.' State v. Palkimas, supra; State v. Kaplan, supra. There was no need specifically to charge the defendant with a violation of the receiving statute, since that crime was within the purview of the larceny statute. 1
In instructing the jury on the relationship between the statutes concerning larceny and receiving stolen goods, the trial court stated that the statute on larceny included within it the offense of receiving stolen goods and that a violator of the receiving statute was to be treated as though he had actually stolen the goods. Nowhere in its charge, however, did the court state that the crime of receiving stolen goods was a lesser included offense within the crime of larceny.
Upon conclusion of the jury's deliberations the following transpired:
The judgment file in this case, however, recites that after a 'full hearing the case was committed to...
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...covered the specific subject matter of the exception. State v. Reardon, 172 Conn. 593, 602, 376 A.2d 65 (1977); State v. Huot, 170 Conn. 463, 465, 365 A.2d 1144 (1976). In the absence of a request or an exception, to warrant reversal the error must consist of a failure to submit to the jury......
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