State v. Rapsey

• Decision Date: 09 August 1932
• Citation: 162 A. 262,115 Conn. 540
• Court: Connecticut Supreme Court
• Parties: STATE v. RAPSEY.

162 A. 262

115 Conn. 540

STATE v. RAPSEY.

Supreme Court of Errors of Connecticut.

August 9, 1932

Appeal from Superior Court, New Haven County; Alfred C. Baldwin. Judge.

Information charging J. Howard Rapsey with the crime of theft in five counts, and of false pretenses in two counts, brought to the superior court in New Haven county and tried to the court. Judgment of guilty on two counts of theft and appeal by the accused.

No error as to fourth count; error as to seventh count, and judgment directed finding defendant not guilty on that count.

HAINES, J., dissenting in part.

David M. Reilly, of New Haven, for appellant.

Samuel E. Hoyt, State's Atty., of New Haven (Abraham S. Ullman Asst. State's Atty., of New Haven, on the brief), for the State.

MALTBIE C.J.

The information against the defendant contains seven counts. Upon the first three, charging him with the theft on May 11, 1929 of certain securities belonging to Elizabeth M. Elizabeth J and Massena Clark, the trial court found him not guilty, and the fifth and sixth counts, charging him with obtaining by false pretenses certain securities belonging to the two last named were nolled. We are only concerned therefore with the two on which he was found guilty, the fourth and seventh. The fourth count charged him with the theft on July 20, 1929, of certain securities belonging to Elizabeth J., and Massena Clark of the value of $89,912.17, and the seventh with the theft from the three Clarks of a deed of certain real estate in New Haven. The claim of the State was that the defendant obtained possession of the securities and the deed by means of certain false representations and thereafter converted them to his own use. It is sufficient for the purpose of this case to define the crime of " theft" of the nature here charged as the obtaining of the possession of personal property of another by deception, artifice, fraud, or force, with the intent on the part of the person obtaining it to convert it to his own use and permanently to deprive the owner of his property, and to point out that if the owner intends to part with the title to the property as well as possession, whatever other crime may have been committed, it will not be theft. State v. Fenn, 41 Conn. 590, 606; State v. Kallaher, 70 Conn. 398, 409, 39 A. 606, 66 Am.St.Rep. 116; State v. Reynolds, 95 Conn. 186, 110 A. 844; Loomis v. People, 67 N.Y. 322, 23 Am.Rep. 123; People v. Noblett, 244 N.Y. 355, 361, 155 N.E. 670; Commonwealth v. King, 202 Mass. 379, 393, 88 N.E. 454; 2 Brill, Cyclopedia Criminal Law, § 761; Clark & Marshall, Law of Crimes (2d Ed.) § 316.

The defendant has brought before us all the evidence and claims that upon it the trial court could not reasonably have found him to have been proven guilty beyond a reasonable doubt. As regards the fourth count that the defendant made false and fraudulant representations to the Clarks in reliance upon which they delivered the securities to him, is amply supported by their testimony. According to them the defendant said that his business was in a healthy condition and that he had a very strong position in the market and that certain securities which had been previously delivered by them to him, the subject-matter of the first three counts, were intact, statements which the trial court might well have found were false and fraudulent. It might also have found that the defendant promised to invest or liquidate the securities delivered to him, for the Clarks, a promise which was made without any intent to keep it but with the purpose of using them to carry on speculative operations in the market.

The principal claim of the defendant is that the state failed to establish with the requisite degree of proof that possession of the securities, rather than title, was transferred to him. The defendant, through a corporation, J. Howard Rapsey Incorporated, all the stock of which he testified he owned, was engaged in trading in stocks and produce upon the regular exchanges. He makes no claim based upon any effort to distinguish between his own acts and liabilities and those of the corporation. The securities which were involved in the offense charged in the fourth count were a part of the estate of Edward M. Clark and the beneficial interest in them belonged to Elizabeth J. and Massena Clark. The latter delivered them to the defendant some time before July 20th to hold for them and to secure the proper transfers when the estate was settled. The defendant testified that the Clarks were thoroughly informed by him that his business consisted of speculating in the market and that the securities were transferred to him to be dealt with in any way he saw fit and to be used by him as a part of the capital of the company in its speculative operations. On the other hand, the Clarks testified in substance that while they knew the defendant to be a speculator in the market, the securities were turned over to him to be reinvested or liquidated for them; that he was to have full discretion as to how he should handle them; but that he promised that he would not speculate with their property but would deal with it conservatively. There was much...