State v. Keegan
| Decision Date | 26 February 1965 |
| Citation | 106 N.H. 152,207 A.2d 427 |
| Parties | STATE v. Kenneth KEEGAN. |
| Court | New Hampshire Supreme Court |
William Maynard, Atty. Gen., and William J. O'Neil, Asst. Atty. Gen., for the State.
Francis P. Edes, Woodsville, for defendant.
The defendant addresses his arguments to two issues: '(1) whether the State established a Corpus Delicti (2) whether the indictment was proved by the evidence presented.'
The statute here involved, RSA 583:3, reads as follows: 'If any person shall, in the nighttime, break or enter * * * any building * * * lying within the body of any county * * * and shall therein commit larceny, he shall be imprisoned not more than five years.'
As to the first issue raised, the defendant argues that neither the cash register, from which a small sum was taken, nor any of the several bottles of liquor, which were also stolen, were introduced in evidence. We know of no authority in this state, and none was furnished us, holding that the articles stolen must be introduced in evidence. As to the fact that the articles were taken, Cookson, one of the two companions of the defendant on the night in question, testified that at the instigation of the defendant, between the hours of 1:30 and 2 a. m. on January 17, 1964, he entered the Caramat Inn on Sugar Hill through a cellar door, that he had to turn the door knob to get in, and he took out a cash register. He further stated that after one of his companions had smashed open the cash register, the defendant pocketed the fifteen cents found in it and then urged Cookson to go back in to 'get something out that's worth while.' Cookson did so and came out a second time with the several bottles of liquor, one of which the defendant took. Huntoon, the other member of the party, confirmed Cookson's testimony.
The defendant also complains that the ownership of the Inn was not proved. However, there was evidence that both the defendant and Cookson had worked there a short time before the robbery. It was clear that none of the three involved in the break owned the In or the property taken from it. In these circumstances, we think we need not labor the point that the evidence warranted a finding of breaking and entering (State v. Skillings, 98 N.H. 203, 208, 97 A.2d 202) in the nighttime and the larceny of property within the meaning of RSA 583:3. No confirmation of the accomplices' testimony was required (State v. Desilets, 96 N.H. 245, 73 A.2d 800), and the jury were free to believe these witnesses if they chose to do so.
It follows that the defendant's first contention that the State 'presented no evidence to establish that a crime was committed' or, in other words, failed to prove a corpus delicti, cannot prevail. State v. Burley, 95 N.H. 77, 57 A.2d 618.
The final issue before us is 'whether the indictment was proved by the evidence presented,' or, in other words, whether a fatal variance existed between the indictment and the proof offered to support it. State v. Canney, 19 N.H. 135. However much common sense and justice may have been sacrificed to an impractical and technical system in 1848, when State v. Canney, supra, upon which the defendant relies, was decided, such strictures no longer represent the rule here. State v. Rousten, 84 N.H. 140, 142-143, 146 A. 870. The defendant's objection here centers on the fact that he was charged with the actual breaking and entering, while the evidence shows that Cookson alone broke into and entered the building. The State counters with a claim that the defendant could be found guilty as a principal of the offense of breaking, entering and larceny in the nighttime. State v. M'Gregor, 41 N.H. 407; State v. Derosia, 94 N.H. 228, 50 A.2d 231.
In order to determine the validity of the defendant's contentions, it is necessary to examine the facts in some detail. The...
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...at that time. State v. Enright, 108 N.H. --, 231 A.2d 628; State v. Cote, 108 N.H. --, 235 A.2d 111 (decided this day); State v. Keegan, 106 N.H. 152, 153, 207 A.2d 427. Defendants' motions to dismiss the indictments and to set aside the verdicts of guilty returned against them by the jury ......
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State v. Bisbee
...defendant could have argued that a fatal variance existed between the indictments and the evidence offered at trial. See State v. Keegan, 106 N.H. 152, 154, 207 A.2d 427 (1965). He did not make this argument, however, and therefore we need not address it. We also disagree that the indictmen......
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State v. Therrien, 86-324
...in the indictment and different from the one overt act that the indictment specifically charged. See also State v. Keegan, 106 N.H. 152, 155, 207 A.2d 427, 429 (1965) (defendant charged as principal to burglary properly convicted on the basis of uncharged overt acts, which would constitute ......
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State v. French
...to determine if there has been an improper variance between the indictment and the proof offered at trial. See State v. Keegan , 106 N.H. 152, 155, 207 A.2d 427 (1965). We now ask whether there is any reason to treat identical allegations differently regarding the State's burden of proof, d......