State v. Vars

Citation224 A.2d 744,154 Conn. 255
PartiesSTATE of Connecticut v. Arthur J. VARS, Sr.
Decision Date29 November 1966
CourtSupreme Court of Connecticut

Melvin Scott, with whom was Matthew Shafner, Groton, for appellant (defendant).

Edmund W. O'Brien, State's Atty., and Joseph T. Sweeney, Sp. Asst. State's Atty., for appellee (state).

Before KING, C. J., andALCORN, HOUSE and COTTER, JJ., and RYAN, Superior Court Judge.

HOUSE, Associate Justice.

The defendant on a trial to a jury was convicted on two counts, each charging the crime of larceny. Error is assigned in the finding, in the charge, in rulings made during the course of the trial and in the denial of the defendant's motion to set aside the verdict. The latter ruling is tested by the evidence contained in the appendices to the briefs. Practice Book §§ 716, 718, 720-722; State v. Keating, 151 Conn. 592, 595, 200 A.2d 724, cert. denied, sub nom. Joseph v. Connecticut, 379 U.S. 963, 85 S.Ct. 654, 13 L.Ed.2d 557; Maltbie, Conn.App.Proc. § 185, p.227. Assertions that claims of proof in the finding are not supported by the evidence are similarly tested to determine whether the evidence supports the findings attacked. Practice Book § 718; State v. Devine, 149 Conn. 640, 654, 183 A.2d 612, cert. denied, sub nom. Cooper v. Connecticut, 371 U.S. 930, 83 S.Ct. 303, 9 L.Ed.2d 237; Maltbie, Conn.App.Proc. §§ 330, 331. On the other hand, the charge and the rulings made during the course of the trial are tested by the claims of proof in the finding and not by the evidence. Practice Book §§ 635, 348; State v. Mallette, 153 Conn. 584, 587, 219 A.2d 447; State v. DaVila, 150 Conn. 1, 5, 183 A.2d 852; State v. Harris, 147 Conn. 589, 599, 164 A.2d 399, 83 A.L.R.2d 783; Maltbie, Conn.App.Proc. §§ 145, 147.

An examination of the evidence as summarized and quoted in the appendices to the briefs indicates that there was evidence either directly or by reasonable inference to support each of the twelve paragraphs of the finding which the defendant attacked. The finding furnished a fair and adequate basis for testing the errors in law claimed to have been made by the court, and no corrections are warranted. State v. Whiteside, 148 Conn. 208, 215, 169 A.2d 260, cert. denied, 368 U.S. 830, 82 S.Ct. 52, 7 L.Ed.2d 33.

Before considering the factual situation presented by the evidence, we fist examine the specific offense with which the defendant was charged and the elements of that offense which the state was required to prove beyond a reasonable doubt. The statute under which the defendant was charged provides that '(a)ny person who steals any money, goods or chattels * * *, if the value of the property stolen exceeds two thousand dollars, shall be imprisoned * * *.' General Statutes § 53-63(a). This statute embraces the common-law crime of larceny. State v. Benson, 153 Conn. 209, 211, 214 A.2d 903. 'To support a conviction for larceny, the evidence must be sufficient to establish the essential elements of the crime charged. These are (1) the wrongful taking and carrying away of the personal property of another; (2) the existence of a felonious intent in the taker to deprive the owner of it permanently; and (3) the lack of the consent of the owner. State v. Main, 75 Conn. 55, 59, 52 A. 257; State v. Sawyer, 95 Conn. 34, 36, 110 A. 461, 13 A.L.R. 139; 2 Swift's Digest 309; 2 Wharton, Criminal Law (12th Ed.) § 1097; 1 Bishop, Criminal Law (9th Ed.) § 566; 32 Am.Jur. 883 (Larceny, § 2).' State v. Banet, 140 Conn. 118, 122, 98 A.2d 530, 531.

Each count of the information charged that the defendant stole a sum of money from the savings account of Joanna Rockwell. There is no justification for the claim by the defendant that the wrongful taking and carrying away charged in the information was the taking and carrying away of withdrawal orders. The information in the first count expressly charges that the defendant 'stole the sum of $8000.00 from the bank account of one Joanna Rockwell.' The second count contains the same allegation except for the different amount of $13,000. The bill of particulars does not change this basic allegation of larceny of the two sums but merely details with greater specificity the manner in which the theft of the money was accomplished by the defendant, i.e., 'by his fraudulently obtaining from Mrs. Joanna Rockwell, without her knowledge or consent, withdrawal orders on said bank signed by Mrs. Joanna Rockwell which were thereafter used by the said accused to unlawfully obtain the sums of money from Mrs. Rockwell's bank account on the dates and in the amounts as alleged in the information.'

The charge, therefore, in each count was the theft of a sum of money from Mrs. Rockwell's savings bank account accomplished by a specified set of acts with a specified intention, all of which constituted an allegation of larceny of sums of money by fraud, artifice or trick. 'The state was attempting to establish the crime of larceny by trick. This crime is committed when one obtains '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 deprive the owner of his property.' State v. Rapsey, 115 Conn. 540, 542, 162 A. 262; State v. Fenn, 41 Conn. 590, 605.' State v. Robington, 137 Conn. 140, 143, 75 A.2d 394, 396; see State v. Reynolds, 95 Conn. 186, 191, 193, 110 A. 844; State v. Levine, 79 Conn. 714, 717, 66 A. 529, 10 L.R.A.,N.S., 286; State v. Kallaher, 70 Conn. 398, 409, 39 A. 606. 'When a person by trick or fraud obtains possession of property, intending at the time of obtaining the property to convert it to his own use, and does so convert it, the fraud is the equivalent of a felonious taking and the offense is larceny.' 2 Wharton, Criminal Law and Procedure § 477.

Where the taker is also in the position of an agent of the victim of the taking, the time of the forming of the felonious intent to take is of paramount importance in the determination whether the taking constitutes embezzlement or larceny. A key element in the former offense is the lawful receipt by an agent of the property which is the subject of the subsequent felonious conversion. State v. Serkau, 128 Conn. 153, 157, 158, 20 A.2d 725. Where, however, the principal is tricked into parting with possession by the agent who, at the time of his taking, has the felonious intent to convert the property to his own use, the offense is larceny and not embezzlement. The principle is well stated in 32 Am.Jur., Larceny, § 31: 'Notwithstanding the general rule that larceny is not committed by a taking which is accomplished with the consent or acquiescence of the owner of the property, the offense is larceny if the owner of goods parts with the possession only, for a particular purpose, and the person who receives the possession avowedly for that purpose has a fraudulent intention to make use of it as the means of converting the goods to his own use, and does so convert them, for in such case the fraud supplies the place of the trespass in the taking, or as otherwise stated, the subsequent felonious conversion of the property by the alleged thief will relate back and make the taking and conversion larceny.' In 52 C.J.S. Larceny § 32, the rule is thus stated: 'A person in possession of money or other personal property of another may become guilty of larceny at common-law by converting such money or property to his own use pursuant to an intent so to convert which was entertained at the time of acquisition.' In 52 C.J.S. Larceny § 36b, it is noted: 'Title to money or other personal property delivered by the owner for use for, or application to, a special purpose does not necessarily pass to the person to whom the property is delivered and such person may be guilty of larceny where delivery was fraudulently induced.' See generally, Graham v. United States, 88 U.S.App.D.C. 129, 187 F.2d 87, 89, cert. denied, 341 U.S. 920, 71 S.Ct. 741, 95 L.Ed. 1353; Commonwealth v. Leland, 311 Mass. 447, 452, 42 N.E.2d 249; 2 Wharton, Criminal Law and Procedure § 509; notes, 26 A.L.R. 381, 389, 146 A.L.R. 532, 549.

With respect to the possessory interest retained by a depositor in a mutual savings institution, it is pertinent to note that, although deposits in an ordinary commercial bank create the relation of debtor and creditor between the bank and the depositor, and the money deposited becomes the property of the bank, which holds it not as the agent but as the debtor of the depositor, a different relation is created by a deposit in a mutual savings institution. Like savings banks, savings and loan associations are incorporated agencies without capital stock. Each is organized 'to accumulate the savings of its members and invest the same in mortgages, loans and such other securities as are allowed by law.' General Statutes § 36-172(a). The members of the association are those in whose names savings accounts are established; General Statutes § 36-172(b); and although the association becomes in a sense the debtor of the depositor, 'it is also his agent since the depositor retains the equitable ownership of the deposit while transferring the legal title to the * * * (association) for the purpose of investing and conserving it for him.' Alexiou v. Bridgeport-People's Savings Bank, 110 Conn. 397, 400, 148 A. 374, 375-376.

Turning now to the evidence, we can accept the defendant's assertion that '(t)he basic facts regarding the alleged crimes were not in issue. It was the intention of the parties or their state of mind as they perfomed these acts which is contested.' 'A question of intent is a question of fact, the determination of which is not reviewable unless the conclusion drawn by the trier is one which cannot reasonably be reached.' International Brotherhood of Elec. Workers v. Commission on Civil Rights, 140 Conn. 537, 543, 102 A.2d 366, 369. Intention is a mental process, and of necessity it must be...

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