State v. Levine

• Decision Date: 14 May 1907
• Court: Connecticut Supreme Court
• Parties: STATE v. LEVINE.

66 A. 529

79 Conn. 714

STATE

v. LEVINE.

Supreme Court of Errors of Connecticut.

May 14, 1907.

Appeal from Superior Court, New London County; Milton A. Shumway, Judge.

Michael Levine was convicted of larceny, and he appeals. Affirmed.

William H. Shields and John H. Barnes, for appellant. Hadlai A. Hull, for the State.

BALDWIN, C. J. In was undisputed on the trial of this case that the check in question, which was drawn on a New York bank and bore the indorsement of the name of the payee, one Skawinski, was received by the defendant at a store which he kept in Colchester, from one Rosen. The state offered evidence tending to prove that the check had been lost in the course of its transmission by mail to Skawinski; that it had come into the possession of a Mrs. Train, who had put it in Rosen's hands, with a request that he find the owner; that Rosen handed it to the defendant, asking if he knew the owner, whereupon the defendant handed it to his daughter, who told him the name of the payee; that the defendant then made to Rosen, in the presence of two witnesses, Sush and a young woman, the false, fraudulent representation that he expected the payee to call at his store that day, and would then give it to him; that Rosen, in reliance on this statement, left the check with the defendant and his daughter, who placed it in the money drawer of the store; and that afterwards the defendant deposited it to his own credit in a bank in Norwich, and collected and converted it to his own use, well knowing that he had no right to it. The defendant offered evidence tending to prove that Rosen asked him to cash the check; that he consented, paying him part in cash and Rosen buying goods to the amount of the balance; and that Sush and the young woman were not present at the time.

The defendant requested the court to tell the jury that, to warrant a conviction, they must find that at the time he accepted the check he formed the intent to appropriate it to his own use. Instead of this, the court instructed them that if the defendant knew when he took the check, or knew soon after he took it, that it belonged to Skawinski, and then converted it to his own use or took the proceeds of it, he was guilty of larceny. They were also charged that while ordinarily, to constitute larceny, a felonious intent to convert the thing taken to the taker's use, without the owner's consent, must exist at the time of the taking, for the purpose of the case on trial, should they find the facts to be as claimed by the state, the rule of law pertaining to lost property applied, namely, that although the act by which tie finder assumes control of it may not be a trespass, and he may pick it up with no intent to steal it, yet that if such an intent be formed later, and after the property actually came into his possession, on his appropriating it to his own use by assuming actual dominion over it, knowing or having reasonable means of knowing the owner, and meaning to deprive him of his property, the crime of larceny is committed. The jury having returned, after a consultation of an hour or two with a request for further information as to what constituted larceny and theft, the court, after instructing them that these terms were synonymous, gave this additional charge: "It seems to me the only question is whether you believe the story which Rosen and Sush have told you, which was that they informed Levine that that was a lost check, that Levine said he knew to whom it belonged, and that the owner was to be there that day, and that he would give it to him. If you believe that story, why, it seems to me, you should convict the accused; but, if you believe the story that the accused tells, that he, Rosen, approached him and asked him to cash the check, and Levine said 'No, I haven't the money, take it into the store and my wife or daughter will cash it for you'—if, under those circumstances he did take the check and deposit it to his own account, taking it and not knowing that it was lost or that Rosen had not any title to it, and if he did not know anything about how Rosen came by the check (as in its form it was negotiable, transferable by delivery, it did not require any further indorsement, in law, to pass title), if he did not know it was a lost check, simply told Rosen to go in and get the money, he had a right to deposit the check in his own bank account, and, even if he did afterwards learn that it was stolen or was a lost check, perhaps he might have been liable to refund the money, but he would not be liable for theft * * * If Levine simply cashed that check for Rosen, I do not think he ought to be convicted for theft, but if he took the check knowing that it was lost, informing himself who the owner was, and he knew that he had no title to it, and afterwards appropriated it to his own use, he is guilty of theft."

The evidence offered by the state tended to prove that Rosen handed the check to Levine, inquiring whether he knew the owner, that Levine passed it over to his daughter, and that she told Levine the name of the payee, after which he made a fraudulent representation which caused Rosen to leave the check in her hands. If these were the facts, the possession remained in Rosen until after the fraudulent representation was made. He handed it to Levine to look at. Levine handed it to his...