State v. Levy

• Citation: 35 A.2d 853,113 Vt. 459
• Decision Date: 01 February 1944
• Docket Number: 1727
• Parties: STATE OF VERMONT v. LOUIS LEVY
• Court: United States State Supreme Court of Vermont

35 A.2d 853

113 Vt. 459

STATE OF VERMONT v. LOUIS LEVY

No. 1727

Supreme Court of Vermont

February 1, 1944

January Term, 1944.

Larceny.

1. Larceny is the taking and removing, by trespass, of personal property, which the trespasser knows to belong either generally or specially to another, with the felonious intent to deprive him of his ownership thereof.

2. The taking of another's property in good faith by inadvertence or mistake does not constitute larceny.

3. Where the evidence relied upon to support a conviction is merely circumstantial, it must be so cogent as to exclude every reasonable hypothesis consistent with the respondent's innocence.

4. When, in a criminal prosecution, the evidence raises only a suspicion of guilt, however strong, or leaves it uncertain or dependent on conjecture, a verdict of acquittal should be directed upon the respondent's motion.

PROSECUTION FOR PETIT LARCENY. Trial by jury, Montpelier Municipal Court, H. William Scott, J. Verdict and judgment of guilty.

Judgment reversed. Verdict and sentence set aside and respondent discharged.

Raymond B. Daniels and George L. Hunt for the respondent.

Joseph W. Foti, Grand Juror, for the State.

Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS JJ.

OPINION

MOULTON

When this cause was here before (113 Vt. 374, 34 A.2d 370) the respondent's plea to the jurisdiction was dismissed, and it was ordered to stand for hearing upon his exceptions taken on trial. These exceptions have now been argued. They relate to the denial of the several motions for a directed verdict of acquittal, to set aside the verdict and for judgment non obstante.

The offense charged is the larceny of an overcoat, the property of Carroll Duke, on May 14, 1943, and there is no material conflict in the testimony. The sequence of events is as follows: Duke went to the Victory Restaurant in Montpelier along with three companions, on the evening of the day alleged. He hung his overcoat on a rack attached to a booth in which the respondent and his wife were sitting. There were a number of other people in the room and several other coats were hanging on the rack. When Duke was about to leave the restaurant he found only one coat left on the rack, which was not his, but similar to it in appearance and color. Although there is no direct testimony to the fact it is to be fairly inferred that the respondent had left before that time. Duke made inquiries of the proprietor, without result, and wore the coat home.

On the evening of May 15th, the respondent and his wife along with Mr. and Mrs. Robert Carr, Mr. and Mrs. Louis Belanger and Philip Iverson, went to a restaurant known as the Venetian Terrace. They left about a quarter to ten o'clock, and went to still another eating place called the Brown Derby, where they remained until nearly midnight, when they all went to the Carrs' residence. The respondent was wearing his own overcoat up to the time he reached the Brown Derby, but as he was leaving the Carr's house, he discovered that he had the coat later identified as belonging to Duke, which, like the one left at the Victory Restaurant, was similar in color and appearance to his own. The next day he made inquiries at the Brown Derby to discover whether anyone had lost a coat, and telephoned and called upon some of the other patrons of the restaurant, but gained no information. He also advertised for his coat in two daily newspapers. He did not wear Duke's coat but kept it in his automobile.

On the evening of May 28, Duke went again to the Victory Restaurant and saw the respondent there. He was not acquainted with him and did not know his name, but, remembering his presence on the former occasion, asked him whether he had an overcoat that did not belong to him. The respondent at once replied that he had and produced the coat from his automobile. Duke claimed it as his, and offered the one that had been left in its place to the respondent, who tried it on, found that it did not fit him, and denied that it was the one he had lost. The two then went to the Brown Derby, where Duke was informed by the proprietor that the respondent had lost his coat there. Duke offered no proof of his ownership beyond his own statement, and accused the respondent of stealing the coat, and the respondent, being angry at the accusation, and admitting that he did not own it, refused to give it up until his coat was returned to him, but later surrendered it.

Larceny is defined as "the taking and removing, by trespass, of personal property, which the trespasser knows to belong either generally or specially to another, with the felonious intent to deprive him of his ownership therein." 2 Bishop, New Criminal Law (8th ed) para. 758. It follows that the taking of...