State v. Small

• Citation: 267 A.2d 912
• Parties: STATE of Maine v. Clifford G. SMALL.
• Decision Date: 28 July 1970
• Court: Supreme Judicial Court of Maine (US)

Page 912

267 A.2d 912

STATE of Maine v. Clifford G. SMALL.

Supreme Judicial Court of Maine.

July 28, 1970.

Robert T. Coffin, County Atty., Malcolm L. Lyons, Law Student, Portland, for plaintiff.

Basil A. Latty, Portland, for defendant.

Before WILLIAMSON, C. J., and WEBBER, MARDEN, DUFRESNE and WEATHERBEE, JJ.

DUFRESNE, Justice.

Tried by jury on an indictment under 17 M.R.S.A § 2103 charging the breaking and entering in the nighttime of the store of one George Litrocapes and the commission of larceny therein, the defendant was found guilty and has appealed from the judgment of conviction. The errors assigned and argued are, (1) to the admission of evidence at trial, (2) to the instructions to the jury and (3) to the denial of a motion for a new trial.

We summarize the evidence. Following a view by the jury, the State presented as witnesses Mr. Litrocapes, the owner of the store, two neighbors who watched the burglars' nocturnal activities, and three officers of the law. The defendant did not take the stand. On March 20, 1969, about 11:30 p. m. Mrs. Anastasia Nolette was sitting at her third floor living room window overlooking the Victory Market, so-called, situated on the other side of Cumberland Avenue in Portland. She observed two young men peeking in the windows of the market which was brightly lit up even though it had been closed for the night since 11:00 p. m. One of the two men had blond hair and a light coat while the other had dark hair and dark clothing. After the blond one had pushed open the door and both had entered the market, Mrs. Nolette called the police. Prior to the arrival of the police, she followed the activities of the burglars inside the market, testifying that they repaired to the area of the beer refrigerator and the cigarette racks. Both young men within a short time came out loaded with full plastic bags. Her daughter, who was also looking on from the same window, corroborated her mother in practically all particulars and added that the loot resembled plastic bags of beer, with which she was familiar. It was snowing at the time and there was fresh snow on the ground but the weather conditions were not those of a blizzard. The women described the course of the two men as they made their exit from the market, traversing Cumberland Avenue midway before they reached Pearl Street. The police were on the scene within minutes; they were informed of the thieves' escape route, Officer Piawlock getting a glimpse of two persons rounding the corner of Cumberland Avenue and Pearl Street on the run. In fresh pursuit, the officers noticed the dual sets of footprints in the snow, commencing at the market on Cumberland Avenue, then crossing the Avenue and thereafter rounding the corner of Pearl Street. The footprints led to a building at 152 Pearl Street situated some 150-200 yards from the corner of Cumberland Avenue. Officer Piawlock again spotted the culprits entering the yard and climbing over a fence. His shouts to stop for the police went unheeded and his attempt to corner them by circling the block went for naught as he lost the footprints (then a single set) which faded away on the wet pavement of Myrtle Street. Officer Fournier, on the other hand, had focussed his attentions towards a driveway located at a higher grade level than the area where Officer Piawlock concentrated his efforts. Alerted by sounds from the other side of the fence, Officer Fournier stood in waiting while the defendant Small climbed back over the fence toward the officer who placed him under arrest. In the immediate vicinity of the fence and lying in the snow along the two sets of footprints which led to the fence, there were several plastic bags each containing five bottles of Ballantine beer; there were also five loose bottles of beer, several paper bags containing packages of cigarettes and some loose packages of cigarettes; all this evidence was gathered in by Officer Fournier and turned over to Detective Coppersmith of the Portland Police Force.

1. Did the Court below commit reversible error in its

rulings on the admissibility of evidence?

The presiding Justice admitted over objections the plastic bags of Ballentine beer and the 5 loose bottles, as well as the paper bags of cigarettes and the loose packages, even though Mr. Litrocapes whose market was burglarized could not testify that the cigarettes in evidence were actually his but merely stated that some cigarettes of the same brand were missing from his store, and notwithstanding the fact he could not tell whether any of his Ballentine beer had been stolen. It was essential for the State to prove that the defendant Small did steal Mr. Litrocapes' beer and cigarettes as alleged in the indictment. But this necessary fact may be proven by circumstantial evidence the same as any other fact. The clain of circumstantial evidence from the time of the original breaking and entering of the market to the time of the defendant's arrest is unbroken, and inevitably leads to the conclusion beyond a reasonable doubt that the defendant did steal Mr. Litrocapes' beer and cigarettes. The thieves were seen carrying out plastic bags of beer. The footprints led directly to the defendant and to goods stolen from the market. Under the circumstances of hot pursuit present in the instant case and the defendant's arrest in close proximity to the loot as he was backtracking over the fence to avoid capture in the middle of a snowy night, together with the initial corroborative testimony of eye witnesses of the breaking, entering and pilfering of goods out of the market, the jury was warranted in concluding beyond a reasonable doubt that the Ballentine beer and cigarettes were the property of Mr. Litrocapes. That a burglary and larceny had occurred was clearly established. That the owner could not identify the property stolen for want of personal marks or other identifying features does not under the circumstances of the instant case preclude the jury finding that Mr. Litrocapes' property was stolen. The presiding Justice under the circumstances was justified in ruling the State's evidence relevant and admissible.

The indictment avers ownership of the stolen goods in Mr. Litrocapes. In an offense, in any way relating to personal estate, if the evidence at trial establishes that the property, at the time of the offense, was in the actual or constructive possession of the person described in the indictment as the owner thereof, it is sufficient proof of ownership by that person and there is no legal variance. 15 M.R.S.A. § 752. The testimony in the instant case is conclusive beyond a reasonable doubt that the stolen beer and cigarettes came from the Victory Market owned and operated by Mr. Litrocapes, from whose possession they were taken when the place was burglarized by the defendant and his companion.

Such is also the rule in other jurisdictions. Commonwealth v. Schultz, 1951, 168 Pa.Super. 435, 79 A.2d 109, cert. den. 342 U.S. 842, 72 S.Ct. 71, 96 L.Ed. 636; People v. Williams, 1966, 75 Ill.App.2d 342, 221 N.E.2d 28; Richardson v. State, 1966, 247 Ind. 610, 220 N.E.2d 345.

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