State v. la Verne

• Decision Date: 07 November 1928
• Docket Number: No. 2220.,2220.
• Citation: 143 A. 594
• Parties: STATE v. LA VERNE.
• Court: New Hampshire Supreme Court

143 A. 594

STATE

v. LA VERNE.

No. 2220.

Supreme Court of New Hampshire. Rockingham.

Nov. 7, 1928.

Transferred from Superior Court, Rockingham County; Sawyer, Judge.

Jack La Verne, alias Van Dyke, was convicted of breaking and entering a store and committing larceny therein, and he brings exceptions. Case transferred. Exceptions overruled.

Indictment for breaking and entering in the nighttime of December 23, 1927, the store of Simpson Bros., in Portsmouth, and committing larceny therein. Trial by jury, and verdict of guilty. The defendant's motion for a directed verdict was denied subject to exception. The only other exception relied on relates to an alleged prejudicial characterization of the defendant's testimony by the court.

James F. Carens, Jr., of Newburyport, Mass., and Ralph J. Rinalducci and Samuel W. Emery, both of Portsmouth, for plaintiff.

Stewart E. Rowe, of Exeter, for the State.

MARBLE, J. The state's evidence tended to prove the following facts:

The defendant and one Pesarki roomed together in a lodging house, the rear of which was separated from the rear of Simpson Bros. store by an alley. One Axman, who occupied an adjoining room, testified that he had spent the evening of December 23 with the defendant and Pesarki; that they had come home with him about 11 o'clock and gone directly to their room; that a few moments later somebody (he was not positive whether one or both of them) left the room and went out; and that he heard footsteps coming back up the stairs about two hours later.

A witness who lived in the apartment directly over the Simpson store stated that he heard noises there between 11 and 12 o'clock. The commotion was such as to keep him awake for an hour or more and to cause him to look out the window in search of an officer. The noises "sounded like people throwing down boxes."

The next morning it was discovered that the store had been entered from the rear and that two suitcases and various articles of wearing apparel had been stolen. An investigation revealed the fact that Pesarki and the defendant had disappeared. When they were apprehended later in Massachusetts, they were wearing some of the stolen clothing and had the suitcases and the rest of the property in their possession. Pesarki admitted his guilt, but the defendant claimed that he had purchased the clothing on the street from a stranger. On the witness stand he denied having made this statement and asserted that he had bought the goods from Pesarki. To impeach his veracity it was shown that he had served a house of correction sentence for burglary in Massachusetts and a prison sentence for abduction in New York.

The mere recital of this evidence is a sufficient refutation of the defendant's contention that his motion should have been granted. Whether, in view of his conduct before and after the burglary, his possession of the stolen property was "recent enough, or exclusive enough, or unexplained enough" to warrant a conviction was a question of fact for the jury. State v. Hodge, 50 N. H. 510, 526. See, also, State v. Bozek, 81 N. H. 277,124 A. 666.

The defendant stated on the stand that after Axman had gone to his room he and Pesarki went down stairs to the parlor; that later Pesarki went out to get some sandwiches; that the defendant waited awhile for him to return and finally went to bed; that when Pesarki came back he had the two suitcases and the clothing in question, all of which he declared had been sold to him by a sailor; that he offered to sell the defendant anything he needed; and that he (the defendant) had purchased the suitcase and clothing later found in his possession.

In the course of the charge the court made use of a word which might reasonably have been construed as derogatory to the defendant's story. Exception was taken, whereupon the court promptly withdrew the word and instructed the jury to strike it out of their minds and not to let it influence them.

"In the absence of decisions in point, it may be difficult to determine the precise limit which uniform practice in this state has placed upon the discretion of the trial judge in charging the jury as to the facts. * * * The substance of the rule as stated in the cases appears to be that the extent to which the facts shall be stated in the charge, and the commentaries to be made upon them, is for the trial judge, and that his action is not open to exception. * * *

"For a judge to inform the jury how he thought the evidence in which a fair conflict existed ought to be determined would probably appear to all lawyers now in practice an invasion of the province of the jury. Upon the general grounds of a violation of uniform and invariable practice and a denial of the right to a fair trial by the jury, and from the manner in which the distinction between law and fact is now drawn in this state * * * all would probably agree that such a...