State v. Kaplan

• Decision Date: 04 April 1900
• Citation: 45 A. 1018,72 Conn. 635
• Parties: STATE v. KAPLAN.
• Court: Connecticut Supreme Court

45 A. 1018

72 Conn. 635

STATE

v. KAPLAN.

Supreme Court of Errors of Connecticut.

April 4, 1900.

Appeal from superior court, New Haven county; John M. Thayer, Judge.

Jacob Kaplan was convicted of theft From an order denying a new trial, and from a judgment of conviction, defendant appeals. No error.

The Information contains two counts. The first charges a theft of 600 pounds of copper, of the value of $100, of the property of the Seymour Manufacturing Company. The second charges a theft of 555 pounds of copper, of the value of $100, of the property of the same corporation. Upon the trial the state claimed to have proved two distinct thefts-one in May and one in September. The accused was acquitted on the first count, and convicted on the second. He was sentenced under section 1449, Gen. St., for the theft of property exceeding $50 in value. The charge of the first count was supported by the testimony of one Filibert Fontaine, and substantially by his testimony only. Upon the charge of the second count the testimony tended to prove that the prisoner and one Cohen (who had disappeared) on Saturday night, September 16th, in the town of Seymour, took 30 ingots of copper, weighing 555 pounds, and of the value of $100, and carried the same in a wagon to New Haven; that on Sunday morning, September 17th, they sold the copper to one Maurice Shavitz, a wholesale junk dealer, for $66; that on Monday morning, September 18th, Shavitz sent the copper to the freight depot in New Haven for shipment to Meriden; that the copper was the property of the Seymour Manufacturing Company, and had recently been taken from its factory. There was also evidence tending to show that the 30 ingots, at the time they were taken by the prisoner, were in the cellar of said Fontaine's house, a short distance from said factory, and that they had been taken from the factory to the cellar, a few ingots at a time, by Fontaine, who was a workman in the factory, and that the value of the copper so taken by Fontaine at any one time was less then $50. There was also evidence tending to show that the prisoner (Kaplan), Cohen, and Fontaine had, before any of the copper was so taken, agreed to steal a quantity of copper from the Seymour Manufacturing Company, and that in pursuance of this agreement Fontaine brought the copper from the factory to his cellar, and about midnight of September 16th, with Kaplan and Cohen, placed the copper in the wagon, to be carried away and sold, and that the proceeds of the sale were shared by all. Fontaine, who was under arrest for the same theft, was placed on the stand by the state for the purpose of proving the charge in the first count, and of proving the identification of the 555 pounds of copper mentioned in the second count as the property of the Seymour Manufacturing Company. This identification depended largely, if not wholly, on his testimony. The claim that the ingots were taken from the factory at different times depended mainly on statements of Fontaine brought out on cross-examination. The prisoner testified in his own behalf (contradicting his admissions proved by other witnesses) that he did not take the copper from Fontaine's cellar, and did not sell it to Shavitz. Shavitz, who had also been arrested for the same theft, testified that he did not buy the copper from the prisoner. After verdict the prisoner moved for a new trial because the verdict was against the evidence. The motion was denied by the trial court. After entry of judgment the prisoner appealed, and in pursuance of section 17 of an act of 1897 (Pub. Acts 1897, p. 892) the court (Thayer, J.) certified all the evidence in the case, and made it a part of the record.

Benjamin Slade, for appellant.

William H. Williams, State's Atty., for the State.

TORRANCE, J. (after stating the facts). The real question presented by the record is this: Does the misconduct of the jury in reaching their verdict so plainly appear from the evidence certified, that the refusal of the trial court to set aside the verdict exceeds its lawful discretion, and constitutes, under our practice and the law of 1897 (Pub. Acts 1897, p. 892, § 17; Id. p. 895, § 29), an error in law? Brooks' Appeal, 68 Conn. 294, 296, 36 Atl. 47; Loomis v. Perkins, 70 Conn. 444, 447, 39 Atl. 797. The working rule or test we have applied in determining such a question requires the injustice of the verdict to be manifest, and the wrong to be so palpable as to justify the suspicion that the jury, or some of them, were influenced by corruption, prejudice, or partiality. Johnson v. Norton, 64 Conn. 134, 135, 29 Atl. 242. Upon a careful examination of the testimony, we find no reason for imputing such misconduct to the jury. The counsel for the prisoner has apparently been misled by the erroneous belief that the jury could not lawfully accept as true the testimony of the state's witness Fontaine, so far as it tended to prove the ownership of the stolen property, and reject other portions of his testimony as untrue or unreliable. Such discrimination is within the power of the jury in respect to every witness; and when the witness is an accomplice, or one whose credit is clearly Impeached by facts disclosed on the trial, it may be the duty of the jury to act upon those parts of his testimony so related to and confirmed by other evidence as to command their credence, and to reject the rest as unreliable. Such weighing of the credit of a witness can never be reviewed by this court. The error it can review consists in a misconception of all the evidence, so apparent as to compel the inference of misconduct, in law.

But the accused further claims that, upon any permissible state of facts which the jury might have found, their general verdict of guilty is, as matter of law, so manifestly against the weight of the evidence as to entitle him to a new trial. He claims that, at the very most, the evidence in the case shows (1) that Fontaine alone stole the copper in question; (2) that he did this by several separate and distinct thefts of portions of it, each portion stolen by any one theft at any one time being of a value not exceeding $15; and (3) that the accused received at one time, and as a single transaction, all of said copper from Fontaine, and then concealed it. Upon these facts he contends (1) that Fontaine was not guilty of a state's prison offense, and could not be punished for such an offense; and (2) that, under our statute relating to receivers of stolen goods, the accused could not be found guilty of, or punished for, a state's prison offense. This last claim is based upon section 1450 of the General Statutes, which reads as follows: "Every person who shall receive and conceal any stolen goods or articles, knowing them to be stolen, shall be proceeded against as a principal, although the person who committed the theft be not convicted thereof; and shall be prosecuted and tried before the same court, and punished in the same manner as if he had been the principal." The contention is that under this law, and upon the assumed facts proved in the case, Kaplan cannot be convicted of, or punished for, a state's prison offense, because Fontaine could not be so convicted or punished. In short, the claim is that, because the statute says that the receiver shall be "punished in the same manner as if he had been the principal," the guilt of the receiver is in all cases to be measured by the guilt of the thief who stole the goods received. If this is the true construction of the statute, and the evidence is as the accused claims it to be, then his claim that the verdict was against the weight of the evidence would be entitled to serious consideration; but we are of opinion that this is not the true construction of the statute, and that, this being so, the verdict was not against the weight of the evidence. This statute appears as early as the revision of 1702. It then provided that the person who should knowingly receive any stolen goods "shall be punished as he or they that commit the theft" Rev. St. 1702 (Ed. 1718) p. 11. In the revision of 1784 the words "shall be punished as he or they that commit the theft" were left out and the following words substituted therefor, "shall and may be proceeded against as principals although the person or persons who committed the theft be not thereof convicted: any law, usage or custom to the contrary notwithstanding." Rev. St. 1784, p. 245. In substantially this last form the act appears in the revisions of 1808 (page 648) and of 1821 (page 159). In 1830 the law is made to read as follows: "If any person shall receive and conceal any stolen goods, articles or things, knowing them to be such, he may and shall be proceeded against as a principal, although the person or persons who committed the theft be not thereof convicted, and shall be tried before the same court and punished in the same manner as if he had been the principal, and shall be liable to the owner or owners of said stolen goods, as the principal would be liable." Pub. Acts 1830, c. 1, § 47. This act remained substantially in this last form until 1875, when it was changed into the form in which it now appears in section 1450 of the General Statutes. We think the plain intent of the legislature, as manifested in this law, is that one who knowingly receives and conceals stolen goods shall, as to prosecution and punishment, be treated just the same...