State v. Newman

Decision Date05 December 1940
Citation127 Conn. 398,17 A.2d 774
CourtConnecticut Supreme Court
PartiesSTATE v. NEWMAN.

Rehearing Denied Feb. 5, 1941.

Error from Superior Court, Hartford County; Frank P. McEvoy, Judge.

Milton D. Newman was convicted of theft and of receiving and concealing stolen goods, upon trial by court, and he appeals. Error, and conviction set aside and case remanded, with direction to discharge defendant.

BROWN and ELLS, JJ., dissenting in part.

Samuel H. Aron, of Hartford, for appellant.

Hugh M Alcorn, Jr., and John P. Hodgson, Asst. State's Attys and Hugh M. Alcorn, State's Atty., all of Hartford, for appellee.

Argued before MALTBIE, C.J., and AVERY, BROWN, JENNINGS, and ELLS JJ.

JENNINGS Judge.

In his appeal from a conviction of theft and of receiving and concealing stolen goods, knowing them to have been stolen the defendant claims, in effect, that the facts found do not support this conclusion.

No evidence was printed. The finding discloses the following undisputed facts: The defendant is an attorney at law. He has practiced for fifteen years in Hartford and prior to this occurrence enjoyed a good reputation for truth and veracity. On August 11, 1939, Harold Doyer stole a new Underwood typewriter in transit from the factory to Washington, D. C. It was packed in the original carton and marked with the name of the shipper and consignee. He sold it for $15 to James Apostle, the proprietor of a grill in Hartford. Apostle was acquainted with the defendant both professionally and personally. He called him up and asked him if he could use a typewriter. The defendant thereupon went to the restaurant, saw the apparently new typewriter which was still in the original carton and asked Apostle where he got it. The later told him that he had paid a truck driver $15 for it. The defendant had reason to believe that the transaction was not legitimate, open and aboveboard. Apostle suggested to the defendant that he would be satisfied if an outstanding bill for legal services of $55 was reduced by $15. The defendant made no reply but took the typewriter to his law office and installed it in place of the one he then had. It remained there, in use and in plain sight, until the fact that it was a stolen machine was ascertained in March, 1940. The defendant made false statements as to the transaction both orally and in writing, before and after this occurrence. Doyer pleaded guilty to theft and Apostle to receiving stolen goods.

As previously stated, the defendant was charged with theft under General Statutes, § 6111, and with receiving stolen goods under § 6116. Since he did not actually steal the typewriter, the state necessarily concedes that he must be brought within the terms of § 6116 if the conviction on either count is to stand. Each element of the offense must be proved beyond a reasonable doubt. ‘ The essential elements of this offense are: (1) The property must have been stolen. (2) It must have been received by the accused with the knowledge that it was stolen. (3) It must have been concealed within the meaning of the law. (4) It must have been received and concealed by the accused with a felonious intent.’ State v. Alderman, 83 Conn. 597, 600, 78 A. 331, 332. The finding established, indeed it is admitted, that the defendant received a stolen typewriter. The question remains whether upon the facts found he received it, knowing that it was stolen, with felonious intent.

As to the element of knowledge, the court found as a fact that ‘ At the time he received the typewriter, the defendant did not know Doyer and did not actually know that Doyer had stolen the machine.’ It then came to the following conclusions on this point:

‘ It is not certain that the defendant actually knew, on the night of August 11, 1939, that the typewriter had been stolen, but the circumstances were such that a reasonable man, of honest intentions, as well as a lawyer of fifteen years experience and in the situation of the accused, would have come to such a conclusion.

‘ The instantaneous and subsequent false statements made by the defendant to police officers-in the City Court and in the Superior Court-were so contradictory sa to induce a conclusion that the defendant was conscious that he was participating in a transaction which was, at least, suspicious and that this consciousness existed in his mind from the night of August 11, 1939, when he took the typewriter from the kitchen in the rear of Apostle's restaurant and that then, and at all times thereafter, the defendant was conscious of his guilt.’

The essential fact to be proved by the state was a simple one, to wit, that the defendant knew that he was receiving a stolen typewriter. State v. Weiner, 84 Conn. 411, 413, 80 A. 198. ‘ The jury must find that the accused had actual knowledge at the time he received the cigarettes that they were stolen as distinguished from finding that he negligently failed to ascertain if they were stolen.’ State v. Day, 339 Mo. 74, 80, 95 S.W.2d 1183, 1185. See, also, State v. Stathos, 208 N.C. 456, 181 S.E....

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