State v. Smith

• Decision Date: 23 April 1968
• Citation: 156 Conn. 378,242 A.2d 763
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Stuart B. SMITH et al.

Page 763

242 A.2d 763

156 Conn. 378

STATE of Connecticut v. Stuart B. SMITH et al.

Supreme Court of Connecticut.

April 23, 1968.

Charles G. Karanian, New Britain, with whom, on the brief, was Daniel J. Hagearty, New Britain, for appellants (defendants).

David B. Salzman, Asst. State's Atty., with whom, on the brief, was George R. Tiernan, State's Atty., for appellee (state).

Before ALCORN, HOUSE, COTTER, THIM and RYAN, JJ.

RYAN, Associate Justice.

The defendants, Stuart B. Smith and George H. Lombra, in a trial to the jury, were convicted of breaking and entering a building with intent to commit a crime therein in violation of § 53-76 of the General Statutes. At the trial, each of the defendants was represented by different counsel. In this appeal the same counsel appears for both defendants.

The defendants' first four assignments of error are addressed to paragraphs of the finding, each of which they claim was found without evidence. There was ample evidence to support these findings, and the claim is without merit.

Both defendants assign error in the denial of their motions for directed verdicts of acquittal which were made at the conclusion of the evidence. From the evidence presented the jury could have found the following facts: On February 17, 1966, at about 1:20 a.m. a state trooper stationed in the town of Middlefield observed a 1959 Ford car, with a white top and a pale pinkish-red bottom, turn south on route 147. The left rear taillight of the car was pinkish-white rather than red and had no lens in it. On the same morning at 2:20 a.m., another state trooper saw this same car traveling south on route 17 in the town of Durham. He obtained the registration number and observed that one of the two occupants was the defendant Stuart B. Smith. With another trooper, he began checking commercial buildings westerly along route 80. Upon their arriving at the Totoket shopping center in North Branford, a burglar alarm began to ring. On investigation they found that the door to Judd's package store had various marks on it. There was an indentation on the doorknob about one-half inch wide, and the wood around the knob was dug out where something had been stuck into the wood. These marks were about one-half inch wide. The rear door to Dee's department store which opens inward had been forced open, and the lock had been broken off. On the inside of the door, a metal plate, part of the locking device, had been torn away with the wood. The marks on the door were the same as those on the door of Judd's package store. These marks were caused by a pry bar, such as a tire iron, or a lug wrench, which the state offered in evidence. While the police officers were at the scene, the same car which had been observed earlier drove into the shopping center and stopped. The operator opened the car door and, upon seeing one of the troopers, got back in the car and drove off at a high rate of speed. The troopers pursued the car, stopped it and apprehended the driver, the defendant George H. Lombra. The car was owned by Smith's wife. On further investigation it was established that there was one set of footprints leading up to Judd's package store and from there to the back door of Dee's department store. The prints then led across the parking lot and up a path which was alongside the river to the bed of an abandoned trolley line. The old trolley line led to the intersection of routes 80 [156 Conn. 381] and 100, a distance of 3.5 miles. From this intersection it is approximately 3.8 miles to the overhead bridge of the Connecticut Turnpike on route 100. Smith was apprehended on route 100 in the vicinity of this bridge at 5:31 a.m. on February 17. It required about 150 minutes to walk the 7.3 miles from Dee's department store to the bridge. The burglar alarm went off at 2:49 a.m. A print made by Smith's right shoe was found 351 feet from Dee's department store, and the tire iron which was in evidence was located two days later a short distance from this print. The tire iron had scratches on it and fitted the indentations on the door knobs and the marks on the doors of Judd's and Dee's stores. There was evidence that the tire iron caused these marks. A search of the Smith car revealed that there was a jack in the car but no tire iron. The tire iron offered in evidence fitted the lug nuts on the Smith car.

From these facts the jury were entitled to infer that the tire iron came from the Smith car and that it was used by Smith to force open the door in the department store. So far as Lombra is concerned, his statement that he dropped Smith off at the shopping center and came back one-half hour later to pick him up, while inadmissible as against Smith, definitely involved Lombra.

Since there was no evidence that anything had been taken from Dee's store, the defendants urge that the state failed to prove that an entry had actually been made. From the facts that the door opened inward, the lock had been broken off, a plate on the inside of the door which was part of the locking device was torn loose, the wires of the burglar alarm on the inside of the door and door frame were broken or disconnected, and the door was open, the jury could infer that some part of Smith's body must have entered the building. 'Any penetration, however slight, of the space within the * * * (building) by the defendant, or by any part of his body * * * is a sufficient entry. Accordingly, it is a sufficient entry when the defendant reaches his finger, hand, or arm inside the * * * (building).' 2 Wharton, Criminal Law and Procedure § 421.

Although the state's case rested on circumstantial evidence, it does not follow from that, however, that it was not a strong case. 'The law recognizes no distinction between circumstantial evidence and direct evidence so far as probative force is concerned. If evidence, whether direct or circumstantial, should convince a jury beyond a reasonable doubt that an accused is guilty, that is all that is required for a conviction. State v. Colonese, 108 Conn. 454, 460, 143 A. 561; State v. Rome, 64 Conn. 329, 334, 30 A. 57. As has been said so often, proof beyond a reasonable doubt is such proof as precludes every reasonable hypothesis except that which it tends to support and is consistent with the defendant's guilt and inconsistent with any other rational conclusion. The requirement that evidence must be such as satisfies beyond a reasonable doubt 'does not mean that the proof must be beyond a posible doubt, and a possible suposition of innocence is a far different thing from a reasonable hypothesis.' State v. McDonough, 129 Conn. 483, 485, 29 A.2d 582, 583; State v. Santoro, 128 Conn. 297, 299, 22 A.2d 793; State v. Guilfoyle, 109 Conn. 124, 139, 145 A. 761; State v. Block, 87 Conn. 573, 577, 89 A. 167.' State v. Smith, 138 Conn. 196, 200, 82 A.2d 816, 819. There was ample evidence to support the conclusion of the jury that both defendants were guilty beyond a reasonable doubt. The court's action in refusing to direct a verdict of acquittal of the defendants was correct.

Smith assigns error in the admission into evidence of certain statements made by Lombra to police officers. These statements were objected to on three occasions by Smith on the ground that they were hearsay and inadmissible as to him. Each of the objections was overruled by the trial court, and an exception duly taken by Smith. Each time this occurred, the trial court carefully instructed the jury that any statement made by Lombra was to be applied only to Lombra as to his alleged part in the commission of the crime and that it was in no way...