State v. Rousten

• Decision Date: 27 June 1929
• Citation: 146 A. 870
• Parties: STATE v. ROUSTEN.
• Court: New Hampshire Supreme Court

146 A. 870

STATE

v. ROUSTEN.

Supreme Court of New Hampshire. Hillsborough.

June 27, 1929.

Transferred from Superior Court, Hillsborough County; Young, Judge.

Hassan Rousten was convicted of preventing and causing the prevention of an electric meter from registering the quantity of electricity supplied to him, and he brings exceptions. Case transferred. Exceptions overruled.

Indictment, under Pub. Laws 1926, c. 355, § 7, containing two counts, one charging the defendant with preventing an electric meter from registering the quantity of electricity supplied to him by the Public Service Company of New Hampshire, the other charging him with causing this to be done. Trial by jury and verdict of guilty.

The defendant excepted to the refusal of the court to direct a verdict, to the admission of certain evidence, and to the denial of his motion to be discharged on the ground of a variance between the indictment and the proof. The facts are stated in the opinion.

John L. Sullivan, of Manchester, Sol., for the State.

Timothy F. O'Connor and Nicholas J. Costakis, both of Manchester, for defendant.

MARBLE, J. 1. The statute makes it a punishable offense for any person wantonly and maliciously to "prevent an electric meter from duly registering the quantity of electricity supplied, or cause it to be done." Pub. Laws 1926, c. 355, § 7.

The state's evidence tended to prove the following facts: In 1921 the defendant established a bakery business in Manchester under the name of the Nu-Fashion Bakery. He was the owner of the building and the sole proprietor of the business. During that same year electric meters were installed in his building. His trade-name was entered on the books of the electric company, and he guaranteed in writing the payment of all bills. In 1923 the enterprise was incorporated with the defendant as president and treasurer.

On October 27, 1927, a meter reader visited the bakery, and discovered that a short wire called a jumper had been attached to the outside wires of the meter, thereby diverting the current and preventing the meter from registering. The defendant was not in town at the time, but, when the situation was explained to him, he merely stated that he had not time to discuss the matter. This meter had been tampered with on at least two prior occasions. On one of these occasions the defendant "admitted that the current had been stolen," and paid the estimated loss to the company. The defendant was in full charge of the building and the business. He had an office on the premises, handled all the money, and attended to the payment of all bills and to the purchasing of all supplies. Except for short business absences, he was present in the building for eight hours each day.

This evidence, though circumstantial, was clearly sufficient to justify the denial of the motion for a directed verdict.

2. The defendant also claims that the court erred in admitting evidence of former instances when current had been diverted from the meter by means of a jumper. The conduct of the defendant in relation to these occurrences, even if it did not evince a design to cheat the company (State v. Hinton, 83 N. H.—, 146 A. 503), at least tended to prove "the respondent's connection with the occupancy of the premises" and his control of the meter. The jury were so instructed, without objection, and were also expressly cautioned that the evidence of these prior acts was not evidence that the defendant had committed the offense for which he was on trial. The admission of the evidence with this limitation furnished no legitimate ground for complaint.

3. The indictment alleges that the defendant, on October 27, 1927, "did wantonly and maliciously prevent an electric meter of the Public Service Company of New Hampshire, a corporation duly established by law, from duly registering the quantity of electricity supplied to him, the said Hassan Rousten, by the said Public Service Company of New Hampshire." The second count charges the defendant with having caused a contrivance to be placed on certain wires so as to prevent the said meter from registering the quantity of electricity supplied to him.

The defendant claims that there is a variance between the allegations and the proof, since the indictment states that the electricity was supplied to him personally, while the evidence indicates that it was furnished the Nu-Fashion Bakery, a corporation. It is not necessary under the statute that the electricity diverted from the meter should be supplied to the person who commits the offense. Consequently the averment in question would seem to be immaterial. See State v. Dinagan, 79 N. H. 7, 10, 104 A. 33; State v. Dame, 60 N. H. 479, 49 Am. Rep. 331, and cases cited. The defendant is entitled, however, to a plain, fair, and full description of the offense charged. Const. Bill of Rights, art. 15; State v. Silverman, 76 N. H. 309, 82 A. 536.

"The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defence, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to...