State v. Lizotte
| Decision Date | 13 June 1967 |
| Citation | 230 A.2d 414 |
| Parties | STATE of Maine v. Robert LIZOTTE. |
| Court | Maine Supreme Court |
Foahd J. Saliem, County Atty., and Richard A. Foley, Asst. County Atty., for appellant.
Ernest L. Goodspeed, Jr., Augusta, for appellee.
Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, DUFRESNE and WEATHERBEE, JJ.
On appeal. Appellant was convicted of breaking, entering and larceny, which conviction, it may fairly be stated, was based upon a presumption of guilty arising from his possession of stolen goods, which possession was unsatisfactorily explained.
The property, the possession of which by the accused raised the reference presumption, was trading stamps popularly known as 'S & H Green Stamps' issued and sold by the Sperry-Hutchinson Corporation to vendors of goods and services and which when issued by such vendors to its vendees represent a discount or premium.
It is unquestioned that forcible entry was made into the office of Central Maine Motors, Inc., in Waterville, an automobile sales and service garage (Motors), on the weekend of September 4-6, 1965. A truck and the office safe containing cash and 'S & H Green Stamps' were taken.
A local representative of the Sperry-Hutchinson Company, an employee of that company of some over three years, testified that on August 30, 1965 he was employed as a salesman with exclusive territory of three counties, including Kennebec; that on that date he sold and delivered to Motors a package, wrapped in polyethylene, of ten books of the Green Stamps; that every book is coded and numbered, the code being expressed in three letters and the numbers from one to one thousand; that each book contains five thousand stamps, each stamp bearing the book, letter, code and number; that on that date, he sold Motors books with code letters ITS and books numbered 41 to 50, inclusive; and that the transaction was recorded on a multiple receipt form signed by both him and Motor's Office Manager, the original going to the Sperry-Hutchinson Company to account for the designated books in his possession, and a copy to Motors as receipt for the purchase price. The Motors copy of the receipt, identified as State's Exhibit 2, was offered and admitted as evidence over objection by the respondent.
The code letters and number of the top book in the package was visible through the wrapping and was established as ITS 041. The codes and numbers of the remaining nine books in the package were not visible through the wrapping. The wrapping bore a label indicating the contents of the package as books ITS 041-050, inclusive. The agent testified that there is no duplication in code or serial number on the stamps issued by the Company and that the method of packaging was as indicated by the label. Reference to the numerical identity of the books involved was made interchangeably throughout the trial as three digits, the first being a zero, or two digits expressing consecutive numbers from 41 through 50. The only legitimate source of supply of such stamps is through the Sperry-Hutchinson Company.
Upon the purchase of the stamps by Motors the package unopened was placed in the office safe. On Friday, September 3, 1965 the Office Manager opened the package and removed the two top books of the package which books were '41' and '42.' The remaining eight books were left in the safe at the close of business on September 4, 1965. The Office Manager did not examine the remaining eight books to determine the code letters and numbers.
Between the close of office business on Saturday, September 4, 1965 and the morning of September 6, 1965 the forcible entry was made and the safe, including the stamps, disappeared.
On September 11, 1965 a friend of the accused while riding in his automobile saw four books of 'Green Stamps' in the glove compartment of the car and purchased one book from the defendant for $1.00. A few days later she removed the stamps from the book and pasted them into four 'Green Stamp' coupon books, each taking 1200 stamps, and on September 25, 1965 offered them for redemption in merchandise at the 'Green Stamps' store in Waterville. The four books were marked for identification as State's Exhibits 1 through 4 and one such book, identified as State's Exhibit 1, was admitted as evidence over objection by the respondent.
The store manager, having been previously notified of the theft, observed that the stamps offered were all ITS 49 and notified the police, following which the appellant was charged.
In defense the respondent alleged that he was confined to his home by accidental injury on the weekend...
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...of the accused soon after they were taken raises an inference of guilt if the accused does not account for that possession, State v. Lizotte, Me., 230 A.2d 414, (5-7) 418, is delicate, though both instructions are sound in Instructing the jury in terms saying on the one hand that the respon......
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...rely on trade names offers substantial protection. Facts recited by labels were accepted as evidence of the facts asserted in State v. Lizotte, Me., 230 A.2d 414(3) 417 and cases cited. Additional cases are Cusimano v. State, 27 Ala.App. 407, 173 So. 490, (3) 491 (1937); and Dabney v. State......
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